Termination of Manager. (a) In the event that the Management Committee decides that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager it may dismiss the Manager in which event, it shall notify the Manager in writing ("Notice of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager and the Joint Venturers shall thereupon appoint an interim manager provided that, notwithstanding its dismissal or termination pursuant to subclause (g) hereof, the former Manager, in order to ensure an orderly transition in the management of the Project, shall co-operate fully with the other Joint Venturers, including by making available to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for herein. (b) The Manager shall have the right within 28 days of receipt of Notice of Dismissal to dispute the decision referred to in subclause (a) hereof by giving written notice to the Joint Venturers whereupon the matter shall be referred immediately to arbitration pursuant to subclause (f) hereof. (c) If the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Manager shall become vacant as of the date of the expiry of the said 28 day period. (d) If it is determined by arbitration: (i) that the Manager has not been incompetent, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option: (a) the Manager will be reinstated and the other Joint Venturers will pay to the Manager one hundred and twenty-five percent (125%) of the fee that the Manager would have been paid for work performed during the period it was not acting as Manager: or (b) the Manager may decline reinstatement and be paid by the other Joint Venturers one hundred and twenty five percent (125%) of the fee that the Manager would have been paid for work performed during the said period. (ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager, the position of Manager shall become vacant as of the date of the determination. (e) A dispute referred to in subclause (b) hereof, shall be decided by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other than the Joint Venturer who is the Manager, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter provided. If any of the parties to the dispute fails to appoint an arbitrator within thirty (30) days after receiving notification of a referral to arbitration by another party, then such arbitrator will be appointed by the President of the international Chamber of Commerce. Furthermore, if the two arbitrators so appointed do not appoint a third arbitrator within thirty (30) days from the appointment of the second arbitrator such third arbitrator will also be appointed by the President of the International Chamber of Commerce. After the appointment of the third arbitrator, the Board will convene at a place selected by him and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy of such award to each of the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid as the Board will determine. The Board will determine by majority vote the rules of evidence and procedure that will apply to the hearing before the Board, provided that each Joint Venturer and the Manager will be entitled to submit oral evidence to the hearing. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final. (f) In the event that Placer's Percentage Interest in the Joint Venture is reduced to less than 20% and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager to continue as Manager as of a specified date, the position of Manager shall become vacant on the date specified in the said notice.
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Samples: Operating Agreement (Drdgold LTD), Operating Agreement (Durban Roodepoort Deep LTD)
Termination of Manager. (a) In the event that the Management Committee decides that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager it may dismiss the Manager in which event, it shall notify the Manager in writing ("Notice of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager and the Joint Venturers shall thereupon appoint an interim manager provided that, notwithstanding its dismissal or termination pursuant to subclause (g) hereof, the former Manager, in order to ensure an orderly transition in the management of the Project, shall co-operate fully with the other Joint Venturers, including by making available to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for herein.
(b) The Manager shall have the right within 28 days of receipt of Notice of Dismissal to dispute the decision referred to in subclause (a) hereof by giving written notice to the Joint Venturers whereupon the matter shall be referred immediately to arbitration pursuant to subclause (f) hereof.
(c) If the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Manager shall become vacant as of the date of the expiry of the said 28 day period.
(d) If it is determined by arbitration:
(i) that the Manager has Borrowers shall not been incompetent, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option:
(a) the Manager will be reinstated and the other Joint Venturers will pay to the Manager one hundred and twenty-five percent (125%) of the fee that the Manager would have been paid for work performed during the period it was not acting as Manager: or
(b) the Manager may decline reinstatement and be paid by the other Joint Venturers one hundred and twenty five percent (125%) of the fee that the Manager would have been paid for work performed during the said period.
(ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager, the position of Manager shall become vacant as of the date of the determination.
(e) A dispute referred to in subclause (b) hereof, shall be decided by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other than the Joint Venturer who is the Managerachieve, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter provided. If any of the parties to the dispute fails to appoint an arbitrator within thirty (30) days after receiving notification of a referral to arbitration by another party, then such arbitrator will be appointed by the President of the international Chamber end of Commerce. Furthermoreeach calendar quarter (the "DSCR Determination Date") provide evidence to Lender of the achievement of, a Debt Service Coverage Ratio for the Properties for such calendar quarter of at least 1.10 to 1.0 (the "Manager Termination Ratio") and Lender determines in its reasonable discretion that a reputable independent property manager can manage the Properties at competitive rates more efficiently and with better results than Borrowers or Manager, or (ii) there exists an Event of Default, Lender shall have the right to remove the Manager (or Borrowers as self-managers), terminate the Management Agreement, if the two arbitrators so appointed do not appoint any (unless there exists no Event of Default and Borrowers shall defease a third arbitrator within thirty (30) days from the appointment portion of the second arbitrator Loan to a level such third arbitrator will also be appointed by that the President Debt Service Coverage Ratio on the undefeased portion of the International Chamber Loan is restored to a level of Commerce. After the appointment of the third arbitrator, the Board will convene at a place selected by him and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy of such award to each of the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid as the Board will determine. The Board will determine by majority vote the rules of evidence and procedure that will apply to the hearing before the Board, provided that each Joint Venturer and not less than the Manager will be entitled Termination Ratio), and replace the Manager (or Borrowers as self-managers) with a manager approved by Lender on terms and conditions satisfactory to submit oral evidence to the hearingLender. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final.
(f) In the event that PlacerBorrowers do not propose a replacement manager to Lender for its approval within fifteen (15) business days after the Lender's Percentage Interest request that Borrowers do so, Lender may propose two or more such property managers for Borrowers' consideration. If Borrowers then fail to select and retain one of such property managers within fifteen (15) business days thereafter, Lender shall have the right to select a property manager for the Properties, and to enter into a management agreement with such manager in the Joint Venture name of Borrowers. Each Borrower hereby appoints Lender its attorney-in-fact, which appointment is reduced to less than 20% coupled with an interest, for the purpose of entering into such management agreement. The management agreement entered into between Borrowers and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager to continue as Manager as of a specified date, the position of any Manager shall become vacant on the date specified be in the said noticeform and substance reasonably acceptable to Lender. All calculations of Debt Service Coverage Ratio shall be subject to verification by Lender.
Appears in 1 contract
Samples: Loan Agreement (Prime Retail Lp)
Termination of Manager. If (ai) In the event that the Management Committee decides that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager it may dismiss the Manager in which event, it shall notify the Manager in writing ("Notice of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager and the Joint Venturers shall thereupon appoint an interim manager provided that, notwithstanding its dismissal or termination pursuant to subclause (g) hereof, the former Manager, in order to ensure an orderly transition in the management of the Project, shall co-operate fully with the other Joint Venturers, including by making available to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for herein.
(b) The Manager shall have the right within 28 days of receipt of Notice of Dismissal to dispute the decision referred to in subclause (a) hereof by giving written notice to the Joint Venturers whereupon the matter shall be referred immediately to arbitration pursuant to subclause (f) hereof.
(c) If the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Manager shall become vacant as of the date end of any calendar ---------------------- quarter, Borrower fails to maintain a Debt Service Coverage Ratio of at least 1.10:1 or (ii) an Event of Default shall be continuing, or (iii) a Manager is in default under its Management Agreement beyond any applicable notice and cure periods, Borrower shall, at the request of Lender, terminate the Management Agreements and replace Managers with a replacement manager acceptable to Lender in Lender's discretion and the applicable Rating Agencies with a management fee not to exceed then market rates and otherwise on terms and conditions satisfactory to Lender and the applicable Rating Agencies unless, in the case of the expiry of the said 28 day period.
(d) If it is determined by arbitration:
event described in clause (i) only, Borrower shall prepay a portion of the unpaid Principal to a level such that the Manager has Debt Service Coverage Ratio after giving effect to such prepayment is restored to a level of not been incompetent, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option:
(a) the Manager will be reinstated and the other Joint Venturers will pay to the Manager one hundred and twenty-five percent (125%) less than 1.10:1. All calculations of the fee that the Manager would have been paid Debt Service Coverage Ratio for work performed during the period it was not acting as Manager: or
(b) the Manager may decline reinstatement and be paid by the other Joint Venturers one hundred and twenty five percent (125%) purposes of the fee that the Manager would have been paid for work performed during the said period.
(ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager, the position of Manager shall become vacant as of the date of the determination.
(e) A dispute referred to in subclause (b) hereof, this Section 5.11.2 shall be decided subject to verification by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other than the Joint Venturer who is the Manager, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter providedLender. If any of the parties to the dispute fails Borrower's failure to appoint an arbitrator acceptable manager within thirty (30) days after receiving notification Lender's request of a referral Borrower to arbitration by another party, then such arbitrator will be appointed by terminate the President Management Agreements (unless resulting from Lender's or the Rating Agencies' failure to approve proposed replacements) shall constitute an immediate Event of the international Chamber of CommerceDefault. Furthermore, if the two arbitrators so appointed do not Borrower may from time to time appoint a third arbitrator within thirty (30successor manager to manage the Properties, which successor manager and Management Agreement(s) days from shall be approved in writing by Lender in Lender's discretion and the appointment of the second arbitrator such third arbitrator will also be appointed by the President of the International Chamber of Commerceapplicable Rating Agencies. After the appointment of the third arbitrator, the Board will convene at a place selected by him and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy of such award to each of the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid as the Board will determine. The Board will determine by majority vote the rules of evidence and procedure that will apply Notwithstanding anything to the hearing before contrary contained herein, Borrower shall have the Boardright, provided without obtaining Lender's or any Rating Agency's consent, to have RMC/Konover Property Trust, LLC transfer and assign its rights under its Management Agreement to KPT Properties, L.P; provided, however that each Joint Venturer concurrently with such transfer and the assignment, KPT Properties, L.P shall execute and deliver to Lender a Consent and Subordination of Manager will be entitled to submit oral evidence to the hearing. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final.
(f) In the event that Placer's Percentage Interest in the Joint Venture is reduced same form as that delivered to less than 20% and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager Lender at closing with respect to continue as Manager as of a specified date, the position of Manager shall become vacant on the date specified in the said noticeits existing Management Agreement.
Appears in 1 contract
Termination of Manager. If: (a) In the event that the Management Committee decides that the Manager has been incompetentas of any Calculation Date, seriously derelict or seriously negligent Borrower fails to maintain a Debt Yield of at least 8.50% (unless such failure is due solely to a short-term decline in performance of its duties as Manager it may dismiss the Manager in which event, it shall notify the Manager in writing ("Notice of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager and the Joint Venturers shall thereupon appoint an interim manager provided that, notwithstanding its dismissal or termination pursuant to subclause (g) hereof, the former Manager, in order to ensure an orderly transition in the management of the Project, shall co-operate fully with the other Joint Venturers, including by making available Net Operating Income resulting from renovations to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for herein.
Property required by Franchisor); (b) The Manager shall have the right within 28 days an Event of receipt of Notice of Dismissal to dispute the decision referred to in subclause (a) hereof by giving written notice to the Joint Venturers whereupon the matter Default shall be referred immediately to arbitration pursuant to subclause (f) hereof.
continuing; (c) If Manager is in default under the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Management Agreement; (d) Manager shall become vacant as a debtor in any bankruptcy or insolvency proceeding; or (e) upon the gross negligence, malfeasance or willful misconduct of Manager, Borrower shall, at the request of Lender, terminate the Management Agreement and replace Manager with a replacement manager acceptable to Lender and, if a Securitization has occurred, the applicable Rating Agencies, on terms and conditions satisfactory to Lender and, if a Securitization has occurred, the applicable Rating Agencies. All calculations of the date Debt Yield for purposes of this Section 5.12.2 shall be subject to verification by Lender. Borrower’s failure to appoint an acceptable manager within forty five (45) days after Lender’s request of Borrower to terminate the expiry Management Agreement shall constitute an immediate Event of Default. Borrower may from time to time appoint a successor manager to manage the said 28 day period.
Property, provided that such successor manager and Management Agreement shall be approved in writing by Lender and, if a Securitization has occurred, the applicable Rating Agencies (d) If it and Lender’s approval may be conditioned upon Borrower delivering a Rating Comfort Letter if the Loan, by itself or together with other loans, has been the subject of a Secondary Market Transaction, and if required pursuant to a Pooling and Servicing Agreement from and after the occurrence of a Secondary Market Transaction). Notwithstanding the foregoing, however, provided no Event of Default is determined by arbitration:
(i) that the Manager has not been incompetentcontinuing, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option:
(a) the Manager will be reinstated approval of Lender and the other Joint Venturers will pay Rating Agencies shall not be required with respect to the appointment of a Qualified Manager one hundred and twenty-five percent (125%) of the fee that the Manager would have been paid for work performed during the period it was not acting as Manager: or
(b) upon the occurrence of a Condor Change of Control Event, Borrower may terminate the Management Agreement and replace the Manager may decline reinstatement and be paid by with a Qualified Manager so long as such new Qualified Manager is in place prior to or concurrently with the other Joint Venturers one hundred and twenty five percent (125%) termination of the fee that the Manager would have been paid for work performed during the said period.
(ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as prior Manager, the position of Manager shall become vacant as of the date of the determination.
(e) A dispute referred to in subclause (b) hereof, shall be decided by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other than the Joint Venturer who is the Manager, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter provided. If at any of the parties time Lender consents to the dispute fails to appoint an arbitrator within thirty (30) days after receiving notification of a referral to arbitration by another party, then such arbitrator will be appointed by the President of the international Chamber of Commerce. Furthermore, if the two arbitrators so appointed do not appoint a third arbitrator within thirty (30) days from the appointment of the second arbitrator a new manager or a Qualified Manager is appointed, such third arbitrator will also be appointed by the President new manager (including any Qualified Manager) and Borrower shall, as a condition of the International Chamber of Commerce. After the appointment of the third arbitratorLender’s consent, the Board will convene at execute (a) a place selected by him management agreement in form and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy of such award substance reasonably acceptable to each of the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid as the Board will determine. The Board will determine by majority vote the rules of evidence and procedure that will apply to the hearing before the Board, provided that each Joint Venturer and the Manager will be entitled to submit oral evidence to the hearing. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final.
(f) In the event that Placer's Percentage Interest in the Joint Venture is reduced to less than 20% and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager to continue as Manager as of a specified date, the position of Manager shall become vacant on the date specified in the said notice.Lender and
Appears in 1 contract
Termination of Manager. If (ai) In an Event of Default shall have occurred and be continuing, (ii) any Manager is in default under any Management Agreement or (iii) the event that the Management Committee decides that the gross negligence, malfeasance or willful misconduct of any Manager has been incompetentoccurred, seriously derelict the applicable Borrower shall, at the request of Lender, terminate the applicable Management Agreement and replace the applicable Manager with a replacement manager acceptable to Lender in Lender’s discretion and the applicable Rating Agencies on terms and conditions satisfactory to Lender and the applicable Rating Agencies. The Borrowers may from time to time appoint one or seriously negligent in performance of its duties as Manager it may dismiss the Manager in which eventmore successor managers to manage any Property, it provided that such successor manager(s) and Management Agreement(s) shall notify the Manager be approved in writing by Lender in Lender’s reasonable discretion and, after a Secondary Market Transaction, the applicable Rating Agencies ("Notice and Lender’s approval may be conditioned upon the Borrowers delivering a Rating Comfort Letter as to such successor manager(s) and Management Agreement(s)). If at any time Lender consents to the appointment of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager a new manager, such new manager and the Joint Venturers shall thereupon appoint an interim manager provided thatapplicable Borrower shall, notwithstanding its dismissal or termination pursuant to subclause (g) hereofas a condition of Lender’s consent, the former Manager, in order to ensure an orderly transition execute a consent and subordination of management agreement substantially in the management form of the Project, shall co-operate fully with the other Joint Venturers, including Consent and Subordination of Manager of even date herewith executed and delivered by making available each Manager to Lender. Notwithstanding anything to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for contrary contained herein.
(b) The Manager , each Borrower shall have the right within 28 days of receipt of Notice of Dismissal to dispute terminate the decision referred to in subclause (a) hereof by giving written notice Management Agreement with respect to the Joint Venturers whereupon the matter Properties owned by such Borrower without Lender’s consent provided that (1) such Borrower shall be referred immediately to arbitration pursuant to subclause (f) hereof.
(c) If the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Manager shall become vacant as of the date of the expiry of the said 28 day period.
(d) If it is determined by arbitration:
(i) that the Manager has not been incompetent, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option:
(a) the Manager will be reinstated and the other Joint Venturers will pay to the Manager one hundred and twenty-five percent (125%) of the fee that the Manager would have been paid for work performed during the period it was not acting as Manager: or
(b) the Manager may decline reinstatement and be paid by the other Joint Venturers one hundred and twenty five percent (125%) of the fee that the Manager would have been paid for work performed during the said period.
(ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as entered into a new management agreement with a Qualified Manager, the position of Manager which new management agreement shall become vacant as of the have an effective date of the determination.
(e) A dispute referred to in subclause (b) hereof, shall be decided by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other not later than the Joint Venturer who is the Manager, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter provided. If any of the parties to the dispute fails to appoint an arbitrator within thirty (30) days after receiving notification of a referral the date on which the then existing Management Agreement is terminated (the “Replacement Management Agreement”) and (2) such Qualified Manager shall have executed and delivered to arbitration by another party, then such arbitrator will be appointed by Lender prior to the President of the international Chamber of Commerce. Furthermore, if the two arbitrators so appointed do not appoint a third arbitrator within thirty (30) days from the appointment of the second arbitrator such third arbitrator will also be appointed by the President of the International Chamber of Commerce. After the appointment of the third arbitrator, the Board will convene at a place selected by him and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy effective date of such award to each Replacement Management Agreement a Consent and Subordination of Manager in the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid same form as the Board will determine. The Board will determine by majority vote the rules of evidence Consent and procedure that will apply to the hearing before the Board, provided that each Joint Venturer and the Manager will be entitled to submit oral evidence to the hearing. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final.
(f) In the event that Placer's Percentage Interest in the Joint Venture is reduced to less than 20% and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager to continue as Manager as of a specified date, the position Subordination of Manager shall become vacant executed and delivered to Lender on the date specified in the said noticehereof.
Appears in 1 contract
Termination of Manager. (a) In the event that the Management Committee decides that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager it may dismiss the Manager in which event, it shall notify the Manager in writing ("Notice of Dismissal") of its decision which decision shall take effect immediately upon receipt thereof by the Manager and the Joint Venturers shall thereupon appoint an interim manager provided that, notwithstanding its dismissal or termination pursuant to subclause (g) hereof, the former Manager, in order to ensure an orderly transition in the management of the Project, shall co-operate fully with the other Joint Venturers, including by making available to the interim manager key personnel engaged in the Project for a reasonable time and on the cost reimbursement and fee basis provided for herein.
(b) The Manager shall have the right within 28 days of receipt of Notice of Dismissal to dispute the decision referred to in subclause (a) hereof by giving written notice to the Joint Venturers whereupon the matter shall be referred immediately to arbitration pursuant to subclause (f) hereof.
(c) If the manager elects not to dispute the Notice of Dismissal within 28 days of receipt as aforesaid, the position of Manager shall become vacant as of the date of the expiry of the said 28 day period.
(d) If it is determined by arbitration:
(i) that the Manager has Borrowers shall not been incompetent, seriously derelict or seriously negligent in performance of its duties and was therefore wrongly dismissed then at the Manager's option:
(a) the Manager will be reinstated and the other Joint Venturers will pay to the Manager one hundred and twenty-five percent (125%) of the fee that the Manager would have been paid for work performed during the period it was not acting as Manager: or
(b) the Manager may decline reinstatement and be paid by the other Joint Venturers one hundred and twenty five percent (125%) of the fee that the Manager would have been paid for work performed during the said period.
(ii) that the Manager has been incompetent, seriously derelict or seriously negligent in performance of its duties as Manager, the position of Manager shall become vacant as of the date of the determination.
(e) A dispute referred to in subclause (b) hereof, shall be decided by a board of three arbitrators (the "Board"), one to be appointed by the Manager, one jointly by all the Joint Venturers other than the Joint Venturer who is the Managerachieve, and the third, who will be chairman, to be appointed by the first two arbitrators or as hereinafter provided. If any of the parties to the dispute fails to appoint an arbitrator within thirty (30) days after receiving notification of a referral to arbitration by another party, then such arbitrator will be appointed by the President of the international Chamber end of Commerce. Furthermoreeach calendar quarter (the "DSCR Determination Date") provide evidence to Lender of the achievement of, a Debt Service Coverage Ratio for the Properties for such calendar quarter of at least 1.15 to 1.0 (the "Manager Termination Ratio") and Lender determines in its reasonable discretion that a reputable independent property manager can manage the Properties at competitive rates more efficiently and with better results than Borrowers or Manager, or (ii) there exists an Event of Default, Lender shall have the right to remove the Manager (or Borrowers as self-managers), terminate the Management Agreement, if the two arbitrators so appointed do not appoint any (unless there exists no Event of Default and Borrowers shall defease a third arbitrator within thirty (30) days from the appointment portion of the second arbitrator Loan to a level such third arbitrator will also be appointed by that the President Debt Service Coverage Ratio on the undefeased portion of the International Chamber Loan is restored to a level of Commerce. After the appointment of the third arbitrator, the Board will convene at a place selected by him and proceed with the arbitration hearing without delay. After such hearing, the Board will make its award expeditiously and will deliver a copy of such award to each of the parties thereto. All costs and expenses of the Board and of the parties in dispute will be paid as the Board will determine. The Board will determine by majority vote the rules of evidence and procedure that will apply to the hearing before the Board, provided that each Joint Venturer and not less than the Manager will be entitled Termination Ratio), and replace the Manager (or Borrowers as self-managers) with a manager approved by Lender on terms and conditions satisfactory to submit oral evidence to the hearingLender. The Manager and the Joint Venturers will be bound by the majority decision of the Board, whose decision shall be final.
(f) In the event that PlacerBorrowers do not propose a replacement manager to Lender for its approval within fifteen (15) business days after the Lender's Percentage Interest request that Borrowers do so, Lender may propose two or more such property managers for Borrowers' consideration. If Borrowers then fail to select and retain one of such property managers within fifteen (15) business days thereafter, Lender shall have the right to select a property manager for the Properties, and to enter into a management agreement with such manager in the Joint Venture name of Borrowers. Each Borrower hereby appoints Lender its attorney-in-fact, which appointment is reduced to less than 20% coupled with an interest, for the purpose of entering into such management agreement. The management agreement entered into between Borrowers and a majority in Percentage Interest of the other Joint Venturers jointly notify the Manager in writing that they do not wish the Manager to continue as Manager as of a specified date, the position of any Manager shall become vacant on the date specified be in the said noticeform and substance reasonably acceptable to Lender. All calculations of Debt Service Coverage Ratio shall be subject to verification by Lender.
Appears in 1 contract
Samples: Loan Agreement (Prime Retail Lp)
