Termination and Assignment. (a) This Agreement may be terminated as follows: (i) At the option of any party upon ninety (90) days advance written notice to the other parties; (ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts; (iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party; (iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor; (v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement; (vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ; (vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable Contracts. (viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination. (ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination. (x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur; (xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media; (xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists; (b) All parties to this Agreement shall promptly notify the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereof. (c) The Funds and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Owners. (d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement. (e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination. (f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Fund Participation Agreement (Select Life Variable Account)
Termination and Assignment. (a) This Agreement may be terminated as follows:
(i) At the option of The Investor may terminate this Agreement, for any party reason, upon ninety not less than sixty (9060) days advance days' written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this AgreementPortfolio Manager; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable Contracts.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination material breach of this Agreement by a majority of the Trustees of Portfolio Manager, the FundsInvestor may terminate this Agreement immediately upon written notice to the Portfolio Manager; provided, or a majority of its disinterested Trusteesfurther, that an irreconcilable conflictif Kenneth H. Shubin Stein is not actively involved in the manageme▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇ny reason for fifteen (15) consecutive days, as described in Section 14 hereofother than absence due to annual leave under ordinary employment conditions, exists;
(b) All parties to this Agreement the Portfolio Manager shall promptly notify the other parties Investor, and the Investor may terminate this Agreement by delivering notice of such termination to the Agreement Portfolio Manager within ten (10) days of delivery of notice. A termination notice may not be rescinded upon its receipt by the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereofPortfolio Manager.
(cii) The Funds and the Distributor acknowledge that the Company Portfolio Manager may have the right to substitute shares of other securities terminate this Agreement, for shares of the Funds under certain circumstances. The Company agrees any reason, upon not to exercise this right until after at least 60 less than thirty (30) days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract OwnersInvestor.
(diii) In This Agreement may not be assigned (as such term is defined under the Advisers Act) without the consent of the Investor. To the fullest extent permitted by applicable law, in the event the Agreement Investor fails to object to a notice of a proposed assignment within thirty (30) calendar days after notice of such assignment is terminated pursuant effectively given to Sections 7(a) the Investor under this Agreement, the Investor shall be deemed to have consented to such assignment.
(iv) This Agreement will automatically terminate upon the liquidation of the Account.
(v) Any termination of this Agreement shall be without the payment of any penalty, except that any person required to pay compensation under any provision of this Agreement for services rendered prior to the effective date of such termination shall remain liable therefore to the party to whom such compensation is due and owing, notwithstanding such termination. Nothing herein shall relieve any party of any liability for any breach of this Agreement.
(vi) Upon termination of this Agreement, the Portfolio Manager shall have the right, in his sole discretion, to either (A) liquidate the Account in an orderly manner and distribute all proceeds to the Investor in the form of cash so as to minimize the economic impact of such liquidation on the Account and any other accounts advised by the Portfolio Manager, or (x), at B) deliver a payment to the option Investor in the form of cash equal to the U.S. dollar value of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares interest of the Funds and, following receipt of Investor in the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company Account as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminatestermination; provided, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement such liquidation pursuant to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment clause (A) of this Agreementsubsection or cash payment pursuant to clause (B) of this subsection shall occur within 30 days of termination.
Appears in 1 contract
Sources: Investment Management Agreement (Spencer Capital Management, LLC)
Termination and Assignment. (a) This Agreement may be terminated as follows:
(i) At the option of any party upon ninety (90) days advance written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,Parties, with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties Parties;
(vii) Upon the implementation by the Company of a substitution of Fund’s 's shares for the shares of another investment company in accordance with the terms of the applicable Contracts.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s 's ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s 's and/or the Funds or the Distributor ’s Distributor's ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners owners or Plan participants having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this Agreement shall promptly notify the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners owners or Plan participants to replace the Funds' shares as described in Section 7(ix) hereof.
(c) The Funds and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Ownersowners or Plan participants.
(d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Fund Participation Agreement (Separate Account N of Reliastar Life)
Termination and Assignment. of this Agreement shall be as follows:
(a) Lender may terminate this Agreement by providing notice to Company, Servicer and Bank that all of Company’s obligations which are secured by Checks and the Account are paid in full. Lender may also terminate or it may assign this Agreement upon 30 day’s prior written notice to Company, Servicer and Bank. Bank may terminate this Agreement upon 30 days’ prior written notice to Company, Servicer and Lender. Neither Company nor Servicer may terminate this Agreement or the Lockbox Service except with the written consent of Lender and upon prior written notice to Bank.
(b) Notwithstanding subsection 10(a), Bank may terminate this Agreement at any time by written notice to Company, Servicer and Lender if either Company or Lender breaches any of the terms of this Agreement, or any other agreement with Bank.
(a) Each party represents and warrants to the other parties that (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.
(b) The parties each agree that it shall be deemed to make and renew each representation and warranty in subsection 11(a) on and as of each day on which Company uses the services set forth in this Agreement.
(a) This Agreement may be terminated as follows:
(i) At the option of any party amended only by a writing signed by Company, Servicer, Lender and Bank; except that Bank’s charges are subject to change by Bank upon ninety (90) days advance 30 days’ prior written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable ContractsCompany.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this This Agreement may be executed in counterparts; all such counterparts shall promptly notify constitute but one and the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereofsame agreement.
(c) The Funds This Agreement controls in the event of any conflict between this Agreement and the Distributor acknowledge that the Company may have the right to substitute shares any other document or written or oral statement. This Agreement supersedes all prior understandings, writings, proposals, representations and communications, oral or written, of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice any party relating to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Ownerssubject matter hereof.
(d) In the event the This Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request interpreted in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statementNorth Carolina law without reference to that state’s principles of conflicts of law.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Credit and Security Agreement (Bell Microproducts Inc)
Termination and Assignment. (a) This Agreement may be shall become effective with respect to each Fund listed on Schedule A as of the date hereof and, with respect to each Fund not in existence on that date, on the date an amendment to Schedule A to this Agreement relating to that Fund is executed. This Agreement shall continue in effect with respect to each Fund for a four-year period beginning on the date of effectiveness of this Agreement with respect to each Fund (the “Initial Term”). Thereafter, if not terminated as follows:
provided herein, the Agreement shall continue automatically in effect as to each Fund for successive annual periods (i) At each a “Renewal Term”). Notwithstanding the option foregoing, either party may terminate this Agreement at the end of the Initial Term or at the end of any successive Renewal Term (the “Termination Date”) by giving the other party upon a written notice not less than ninety (90) days advance written notice days’ prior to the other parties;
(ii) At the option end of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of respective term. Furthermore, either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable Contracts.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to party may terminate this Agreement, and after considering the actions taken relevant party (or its affiliate which has entered into such agreement) may also terminate (i) the Administration and Fund Accounting Agreement between the Trust and UMB Fund Services, Inc., and (ii) the Transfer Agency Agreement between the Trust and UMB Fund Services, Inc., immediately upon the breach by the Company and other party of any other changes in circumstances since the giving material term of this Agreement (if such breach is not cured within thirty (30) days of notice of such breach to the breaching party) (a notice“Material Breach”). In the event this Agreement is terminated by the Trust (i.e., and not as a result of a merger, liquidation or deregistration) prior to the end of the Initial Term or any subsequent Renewal Term, other than in connection with Custodian’s Material Breach as provided for herein, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day Trust shall be obligated to pay Transfer Agent $[ ](the “Liquidated Damages”). Upon termination of this Agreement, the appropriate Fund shall pay to the Custodian such fees as may have been accrued and are due the Custodian hereunder as well as its reimbursable disbursements, costs and expenses paid or incurred. Upon termination of this Agreement, the Custodian shall deliver, at the terminating party's expense, all Assets held by it hereunder to a successor custodian designated by the Fund or, if a successor custodian is not designated, then to the appropriate Fund or as otherwise designated by such Fund by Special Instructions. Upon such delivery, the Custodian shall have no further obligations or liabilities under this Agreement except as to the final resolution of matters relating to activity occurring prior to the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this Agreement shall promptly notify the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereof.
(c) The Funds and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that for any reason Securities or other Assets remain in the Company exercises its right to substitute shares of other securities for shares possession of the FundsCustodian after the date such termination shall take effect, the Company Custodian shall furnish, or shall cause be entitled to be furnished, compensation at the same rates as agreed to by the Custodian and the Funds and during the Distributor, or their designees, any application for an order seeking approval term of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Owners.
(d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested as set forth in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) Section 11. This Agreement shall may not be assigned by the Custodian or any party Fund without the written respective consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreementother.
Appears in 1 contract
Termination and Assignment. of this Agreement shall be as follows:
(a) Lender may terminate this Agreement by providing notice to Company and Bank that all of Company's obligations which are secured by Checks and the Account are paid in full. Lender may also terminate or it may assign this Agreement upon 30 day's prior written notice to Company and Bank. Bank may terminate this Agreement upon 30 days' prior written notice to Company and Lender. Company may not terminate this Agreement except with the written consent of Lender and upon prior written notice to Bank.
(b) Notwithstanding subsection 10(a), Bank may terminate this Agreement at any time by written notice to Company and Lender if either Company or Lender breaches any of the terms of this Agreement, or any other agreement with Bank.
(a) Each party represents and warrants to the other parties that (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.
(b) The parties each agree that it shall be deemed to make and renew each representation and warranty in subsection 11(a) on and as of each day on which Company uses the services set forth in this Agreement.
(a) This Agreement may be terminated as follows:
(i) At the option of any party amended only by a writing signed by Company, Lender and Bank; except that Bank's charges are subject to change by Bank upon ninety (90) days advance 30 days' prior written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable ContractsCompany.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this This Agreement may be executed in counterparts; all such counterparts shall promptly notify constitute but one and the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereofsame agreement.
(c) The Funds This Agreement controls in the event of any conflict between this Agreement and the Distributor acknowledge that the Company may have the right to substitute shares any other document or written or oral statement. This Agreement supersedes all prior understandings, writings, proposals, representations and communications, oral or written, of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice any party relating to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Ownerssubject matter hereof.
(d) In the event the This Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request interpreted in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion laws of the assets State of the Separate Accounts continue New York without reference to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after terminationthat state's principles of conflicts of law.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Deposit Account Control Agreement (Host America Corp)
Termination and Assignment. of this Agreement shall be as follows:
(a) Lender may terminate this Agreement by providing notice to Company and Bank that the Transaction Lien has been terminated in accordance with the Security Agreement. Lender may also terminate or it may assign this Agreement upon 30 day’s prior written notice to Company and Bank, provided, however that any such assignment shall only be to an affiliate or wholly-owned subsidiary of Lender. Bank may terminate this Agreement upon 30 days’ prior written notice to Company and Lender. Company may not terminate this Agreement except with the written consent of Lender and upon prior written notice to Bank.
(b) Notwithstanding subsection 10(a), Bank may terminate this Agreement at any time by written notice to Company and Lender if either Company or Lender breaches any of the terms of this Agreement, or any other agreement with Bank.
(a) Each party represents and warrants to the other parties that (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.
(b) The parties each agree that it shall be deemed to make and renew each representation and warranty in subsection 11(a) on and as of each day on which Company uses the services set forth in this Agreement.
(c) Bank represents that: (i) the Account has been established as set forth in paragraph D above and will be maintained in the manner set forth herein until this Agreement is terminated; and (ii) neither the Account nor any funds or deposits at any time held therein or credited thereto is or will be evidenced by any instrument (as defined in Section 9-102 of the UCC) or constitutes or will constitute investment property (as defined in Section 9-102 of the UCC).
(a) This Agreement may be terminated as follows:
(i) At the option of any party amended only by a writing signed by Company, Lender and Bank; except that Bank’s charges are subject to change by Bank upon ninety (90) days advance 30 days’ prior written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable ContractsCompany.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this This Agreement may be executed in counterparts; all such counterparts shall promptly notify constitute but one and the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereofsame agreement.
(c) The Funds This Agreement controls in the event of any conflict between this Agreement and the Distributor acknowledge that the Company may have the right to substitute shares any other document or written or oral statement. This Agreement supersedes all prior understandings, writings, proposals, representations and communications, oral or written, of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice any party relating to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Ownerssubject matter hereof.
(d) In This Agreement shall be interpreted in accordance with the event laws of the State of New York, without reference to that state’s principles of conflicts of law. The State of New York shall be deemed to be Bank’s jurisdiction (as defined in Section 9-304 of the UCC) with respect to the Account.
13. Any written notice or other written communication to be given under this Agreement shall be addressed to each party at its address set forth on the signature page of this Agreement or to such other address as a party may specify in writing. Except as otherwise expressly provided herein, any such notice shall be effective upon receipt.
14. Nothing contained in the Agreement shall create any agency, fiduciary, joint venture or partnership relationship between Bank and Company or Lender. Company and Lender agree that nothing contained in this Agreement, nor any course of dealing among the parties to this Agreement, shall constitute a commitment or other obligation on the part of Bank to extend credit to Company or Lender. In Witness Whereof, the parties hereto have executed this Agreement by their duly authorized officers as of the day and year first above written. By: Address for notices: Name: Title: By: Address for notices: Name: Title: By: Address for notices: Name: Title: To: [Bank] [Address] Re: [▇▇▇▇▇▇ & Noble, Inc.] Account No. Ladies and Gentlemen: Reference is terminated pursuant made to Sections 7(athe Deposit Account Control Agreement dated , 20 (the “Agreement”) among [▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.], us and you regarding the above-described account (the “Account”). In accordance with Section 2 of the Agreement, we hereby give you notice of our exercise of control of the Account and we hereby instruct you to transfer funds to our account as follows: Bank Name: __________________________________ Bank Address: __________________________________ ABA No.: __________________________________ Account Name: __________________________________ Account No.: __________________________________ Beneficiary’s Name: __________________________________ Very truly yours, as Lender By: Name: Title: Acknowledged By: As Bank By: Name: Title: , 20__ [Bank of America, N.A., as Administrative Agent Retail Finance Group, 9th Floor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇] Attention: Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit Agreement, dated as of April , 2011 (as amended, amended and restated, restated, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”) by, among others, (i) ▇▇▇▇▇▇ & Noble, Inc., a Delaware corporation, as the lead borrower (in such capacity, the “Lead Borrower”) for itself and the other Borrowers from time to time party thereto, (ii) the other Borrowers from time to time party thereto, (iii) the Guarantors from time to time party thereto, (iv) Bank of America, N.A., as Administrative Agent, Collateral Agent and Swing Line Lender, (v) the Lenders from time to time party thereto, (vi) JPMorgan Chase Bank, N.A. and ▇▇▇▇▇ Fargo Bank, National Association, as Co-Syndication Agents and (vii) SunTrust Bank and Regions Bank, as Co-Documentation Agents. Capitalized terms used but not defined herein shall have the meanings set forth in the Credit Agreement. In accordance with the section of the Credit Agreement marked below, the Lead Borrower hereby gives you notice that: ¨ an action, event or (xoccurrence which gives rise to a notice under the terms of the Credit Agreement has taken place. Attached hereto as Schedule 1 is a description of the action, event or occurrence and the provision(s) of the Credit Agreement requiring this notice. ¨ pursuant to Section 7.02(g), at a Loan Party will make an Investment constituting a Permitted Acquisition under the option definition thereof. Attached hereto as Schedule 2 is a certification as to the items specified therein. ¨ pursuant to Section 7.02(k), a Loan Party will make an Investment. Attached hereto as Schedule 3 is a certification as to the items specified therein. ¨ pursuant to Section 7.06(d), the Lead Borrower will pay cash dividends on its Equity Interests (other than Disqualified Stock), or repurchase, redeem or otherwise acquire Equity Interests issued by it. Attached hereto as Schedule 4 is a certification as to the items specified therein. ¨ pursuant to Section 7.07(b), the Lead Borrower will prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof a Permitted Indebtedness. Attached hereto as Schedule 5 is a certification as to the items specified therein. ¨ pursuant to Section 7.07(c), a Loan Party will make voluntary prepayments, repurchases, redemptions or defeasances of Specified Indebtedness. Attached hereto as Schedule 6 is a certification as to the items specified therein. Very truly yours, ▇▇▇▇▇▇ & NOBLE, INC, as Lead Borrower By: Name: Title: Description of the Funds action or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares occurrence: ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ Provision(s) of the Funds Credit Agreement requiring this notice: ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ ____________________________________________________________________________________________ Pursuant to Section 7.02(g), and, following receipt as applicable, clause (i)(c) and clause (ii)(g) of the substitution orderdefinition of Permitted Acquisition, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary Lead Borrower hereby delivers a written certification of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event")following: ¨ If applicable, such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company Projected Excess Availability as of the date of consummation of the redemption eventAcquisition will be equal to or greater than twenty percent (20%) of the Loan Cap. The Investment Company agrees ¨ If applicable, Projected Excess Availability as of the date of consummation of the Acquisition will be equal to process either such redemption request in accordance with or greater than thirty percent (30%) of the 1940 Act and the regulations thereunder and the Investment Company's registration statement.Loan Cap. Projected Excess Availability1:
1. Tranche A Availability
(ea) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
Tranche A Loan Cap (fi) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.Tranche A Aggregate Commitments [915,000,000 ]
Appears in 1 contract
Termination and Assignment. (a) This 14.1 The Agreement may be terminated before its expiry as follows:
(i) At set forth in clause 13 by either Party in the option event of a material breach by the other Party of any party upon material representation, warranty, covenant or undertaking (including the payment of fees due) contained in this Agreement that is not cured within thirty (30) Business Days after the non-terminating Party receives written notice from the terminating Party, describing the breach in detail and requiring it to be remedied. In addition, DSPG may terminate the provision of any Service by giving NXP ninety (90) days advance prior written notice to the other parties;
(ii) At the option notice, in which case all rights and obligations of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of parties under this Agreement; provided, however, that prompt advance written notice of election to Agreement will terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 such Service. CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS MARKED WITH [*] AND FILED SEPARATELY WITH THE SEC. 12
14.2 Termination of this Agreement;
(vi) At the option of the Company Parties ,with respect Agreement pursuant to the applicable Funds, upon termination terms hereof shall not act as a waiver of the management agreement between such Funds any breach of this Agreement and their investment adviser (except where such termination is the result shall not act as a release of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice either Party from any liability for breach of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of FundParty’s shares for the shares of another investment company in accordance with the terms of the applicable Contracts.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant Termination or expiration of this Agreement will not affect the Distributor rights and obligations of the Parties under any other agreement between the Parties.
14.3 No rights and obligations under this Agreement may be assigned to any party, other than in combination with an assignment of all rights under the IPTLA as allowed in clause 16.1 of the IPTLA, to that same party. In case of a divestment or other transfer (be it in the form of a merger, consolidation, corporate reorganization, sale of assets or like event) involving all or substantially all of the then-remaining assets or business of (i) the Continued Operations or (ii) DSPG to any third party, this Agreement shall notify terminate. At the Company request of that determination DSPG, NXP will grant, unless the third party to whom Services would be provided is a competitor of NXP, equivalent services to such third party for the purposes of operating the then remaining assets or business of the Continued Operations. Such Services shall be of the same scope and its intent subject to terminate the same conditions as the Services to be provided pursuant to this Agreement, provided in any case that Services (i) shall only be continued for Serviced Know How licensed to DSPG and after considering its Affiliates pursuant to the actions taken by IPTLA at the Company moment of divestment and any other changes in circumstances since which are relevant to the giving of such a noticedivested company’s business, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth and (90thii) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party limited to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this Agreement shall promptly notify the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereof.
(c) The Funds business so divested and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Owners.
(d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant extend to any other provision of Section 7 business, operation or activity with which it is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event")or becomes combined, such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statementmerged or that otherwise grows “unnaturally”.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Ip Library Services and R&d Agreement (DSP Group Inc /De/)
Termination and Assignment. Any Fund or the Custodian may terminate this Agreement by notice in writing, delivered or mailed, postage prepaid (acertified mail, return receipt requested) This Agreement may be terminated as follows:
(i) At the option of any party upon ninety (90) days advance written notice to the other parties;
(ii) At not less than 90 days prior to the option of the Company Parties date upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor which such termination shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms take effect. Upon termination of this Agreement; provided, however, that prompt advance written notice of election to terminate the appropriate Fund shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice pay to the Registrants with respect to any Funds if Custodian such fees as may be due the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements Custodian hereunder as well as its reimbursable disbursements, costs and expenses paid or Subchapter M qualifications specific in Section 13 incurred. Upon termination of this Agreement;
(vi) At , the option of Custodian shall deliver, at the Company Parties ,with respect terminating party's expense, all Assets held by it hereunder to the applicable Fundsappropriate Fund or as otherwise designated by such Fund by Special Instructions. Upon such delivery, upon termination of the management agreement between such Funds and their investment adviser (Custodian shall have no further obligations or liabilities under this Agreement except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished as to the Company Parties ;
(vii) Upon the implementation by the Company final resolution of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable Contracts.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability matters relating to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent activity occurring prior to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At . Notwithstanding the option notice period specified in this section, the Custodian will be deemed to be in default of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this Agreement shall promptly notify the other parties to the Agreement of will terminate immediately, if the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice Custodian fails to satisfy the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereof.
(c) The Funds and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Owners.
(d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision requirements of Section 7 is reached and the substitution 17(f) of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as Act of 1940; the Custodian enters Federal Deposit Insurance Corporation receivership; the Custodian becomes insolvent or makes a general assignment for the benefit of creditors; if a petition in bankruptcy is filed by the Custodian or such petition is filed against the Custodian and not opposed by the Custodian; or if a receiver or someone acting in that capacity (permanent or temporary) of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment CompanyCustodian's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.assets
Appears in 1 contract
Sources: Custody Agreement (Prairie Fund)
Termination and Assignment. of this Agreement shall be as follows:
(a) Lender may terminate this Agreement by providing notice to Company and Bank that all of Company's obligations which are secured by Checks and the Accounts are paid in full. Lender may also terminate or it may assign this Agreement upon 30 day's prior written notice to Company and Bank. Bank may terminate this Agreement upon 30 days' prior written notice to Company and Lender. Company may not terminate this Agreement or the Lockbox Service except with the written consent of Lender and upon prior written notice to Bank.
(b) Notwithstanding subsection 10(a), Bank may terminate this Agreement at any time by written notice to Company and Lender if either Company or Lender breaches any of the terms of this Agreement, or any other agreement with Bank.
(a) Each party represents and warrants to the other parties that (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.
(b) The parties each agree that it shall be deemed to make and renew each representation and warranty in subsection 11(a) on and as of each day on which Company uses the services set forth in this Agreement.
(a) This Agreement may be terminated as follows:
(i) At the option of any party amended only by a writing signed by Company, Lender and Bank; except that Bank's charges are subject to change by Bank upon ninety (90) days advance 30 days' prior written notice to the other parties;
(ii) At the option of the Company Parties upon (90) days advance written notice if shares of the Funds are not available for any reason to meet the investment requirements of the Contracts;
(iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms of this Agreement; provided, however, that prompt advance written notice of election to terminate shall be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable ContractsCompany.
(viii) At the option of either each Registrant or the Distributor, if each Registrant or the Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Company has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Company’s ability to perform its obligations under this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Company and any other changes in circumstances since the giving of such a notice, the determination of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this This Agreement may be executed in counterparts; all such counterparts shall promptly notify constitute but one and the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereofsame agreement.
(c) The Funds This Agreement controls in the event of any conflict between this Agreement and the Distributor acknowledge that the Company may have the right to substitute shares any other document or written or oral statement. This Agreement supersedes all prior understandings, writings, proposals, representations and communications, oral or written, of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice any party relating to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Ownerssubject matter hereof.
(d) In the event the This Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request interpreted in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion laws of the assets State of the Separate Accounts continue New York without reference to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after terminationthat state's principles of conflicts of law.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Deposit Account Control Agreement (Host America Corp)
Termination and Assignment. (a) This Agreement may not be wholly or partially assigned by Contractor, by operation of law or otherwise, without the prior written consent of ASMI which it may refuse in its sole discretion. Any attempted assignment of this Agreement in violation of the foregoing shall be void and not merely voidable, and constitute a default hereof. ASMI may assign this Agreement to another entity. This Agreement may only be terminated as follows:
set forth below, in the absence of written agreement by both parties. In the event of any such termination, ▇▇▇▇’s maximum liability for termination shall be the pro-rated value of fully-documented (i) At the option of any party upon ninety (90) days advance written notice Services completed hereunder to the other parties;
effective date of termination, and (ii) At any non-cancellable financial commitments of Contractor hereunder that were properly incurred by Contractor for the option benefit of ASMI pursuant to the Company Parties upon (90) days advance written notice if shares requirements of the Funds are not available this Agreement.
a. ASMI may terminate this Agreement for any reason to meet the investment requirements of the Contracts;upon 30 days written notice without any further liability for termination other than that described herein,
(b. ASMI may terminate this Agreement immediately at any time without any further liability for termination other than that described herein due to:
i. Material changes in ASMI’s funding.
ii. A Force Majeure event as described herein.
iii) At the option of either Company Distributor or Distributor, upon institution of formal disciplinary or investigative proceedings against the Company Distributor, Distributor or the Funds by the Financial Industry Regulatory Authority ("FINRA"), the Securities and Exchange Commission ("SEC"), or any other regulatory body with jurisdiction over the relevant party;
(iv) At the option of Distributor if Distributor shall reasonably determine in good faith that shares of the Funds are not being offered in conformity with the terms . Any breach of this AgreementAgreement by Contractor that Contractor fails to cure within 15 days after its receipt of notice by ASMI of such breach; provided, however, that prompt advance written notice if Contractor commits the same breach during the term of election to terminate this Agreement it shall not be furnished by the Distributor;
(v) At the option of the Company Parties by written notice to the Registrants with respect entitled to any Funds if the Company reasonably believes that the Funds will fail to meet Section 817(h) diversification requirements or Subchapter M qualifications specific in Section 13 of this Agreement;
(vi) At the option of the Company Parties ,with respect to the applicable Funds, upon termination of the management agreement between such Funds and their investment adviser (except where such termination is the result of a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc.); written further notice of such termination shall be promptly furnished to the Company Parties ;
(vii) Upon the implementation by the Company of a substitution of Fund’s shares for the shares of another investment company in accordance with the terms of the applicable Contractsfrom ASMI.
(viii) At the option of either each Registrant iv. Any criminal or the Distributorcivil action brought against Contractor or its employees, if each Registrant or the Distributor, respectively, shall determine, which in its ASMI’s sole judgment reasonably exercised in good faithimpairs, that the Company has suffered a material adverse change in its business hinders or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Companythreatens:
A. Contractor’s ability to perform its obligations under the Services
B. ASMI’s or any Funding Source’s reputation, programs or funding.
c. Contractor may terminate this Agreement. Each Registrant or the Distributor shall notify the Company of that determination and its intent Agreement upon 30 days written notice, in which case ASMI may choose to terminate immediately upon receiving such notice without any further liability for such termination.
d. This Agreement shall automatically terminate without any further liability for termination other than that described herein upon:
i. Contractor’s death, if an individual, or
ii. Contractor’s disability or other inability to perform the Services or achieve the Deliverables.
e. In addition to the Client having the right to cancel this Agreement, and after considering Contract due to the actions taken by the Company and any other changes in circumstances since the giving lack of such a noticeappropriated funds, the determination State may terminate the Contract in whole or in part, when it is in the best interest of each Registrant or the Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be client. The client is liable only for payment for services rendered before the effective date of the termination.
(ix) At the option of the Company or Company Distributor, respectively, shall determine, in its sole judgment reasonably exercised in good faith, that the Registrants and/or the Funds or the Distributor has suffered a material adverse change in its business or financial condition or is the subject of material adverse publicity and that material adverse change or publicity will have a material adverse impact on the Registrant’s and/or the Funds or the Distributor ’s ability to perform its obligations under this Agreement. The Company or Company Distributor shall notify the Registrants and/or the Funds or the Distributor of that determination and its intent to terminate this Agreement, and after considering the actions taken by the Registrants and/or the Funds or the Distributor and any other changes in circumstances since the giving of such a notice, the determination of the Company or Company Distributor shall continue to apply on the ninetieth (90th) day following the giving of that notice, which sixtieth day shall be the effective date of termination.
(x) If the Fund's shares are not registered, issued or sold in conformance with federal law or such law precludes the use of Fund shares as an investment vehicle for the Contracts provided, however, that prompt notice shall be given by any party should such situation occur;
(xi) Upon requisite vote of the Variable Contract Owners having an interest in the Separate Accounts (or any subaccounts thereof) to substitute the shares of another investment company for the corresponding shares of the Funds or a Fund in accordance with the terms of the Contracts for which those shares had been selected or serve as the underlying investment media;
(xii) At the option of any party to the Agreement, immediately upon written notice, in the event of a determination by a majority of the Trustees of the Funds, or a majority of its disinterested Trustees, that an irreconcilable conflict, as described in Section 14 hereof, exists;
(b) All parties to this Agreement shall promptly notify the other parties to the Agreement of the institution against such party of any such formal proceedings as described in Section 7(iii) hereof. The Company shall give 60 days prior written notice to the Funds of the date of any proposed vote of Variable Contract Owners to replace the Funds' shares as described in Section 7(ix) hereof.
(c) The Funds and the Distributor acknowledge that the Company may have the right to substitute shares of other securities for shares of the Funds under certain circumstances. The Company agrees not to exercise this right until after at least 60 days' written notice to the Funds and the Distributor. In the event that the Company exercises its right to substitute shares of other securities for shares of the Funds, the Company shall furnish, or shall cause to be furnished, to the Funds and the Distributor, or their designees, any application for an order seeking approval of the substitution or any other written material related to such substitution, including the notice of the substitution to be sent to Variable Contract Owners.
(d) In the event the Agreement is terminated pursuant to Sections 7(a) (iv) or (x), at the option of the Funds or the Distributor the Company agrees to use its best efforts to seek an order approving the substitution of shares of the Funds and, following receipt of the substitution order, to implement such substitution promptly and as early as reasonable practicable. In the event that the one year anniversary of the termination of the Agreement pursuant to any other provision of Section 7 is reached and the substitution of shares of the Funds has not yet been accomplished (a "redemption event"), such redemption event shall be considered as an immediate request for redemption of shares of the Funds held by the Separate Accounts received by the Investment Company as of the date of the redemption event. The Investment Company agrees to process either such redemption request in accordance with the 1940 Act and the regulations thereunder and the Investment Company's registration statement.
(e) If this Agreement terminates, the parties agree that to the extent that all or a portion of the assets of the Separate Accounts continue to be invested in the Funds or any Fund, Sections 1 through 6 and 10 through 14 will remain in effect after termination.
(f) This Agreement shall not be assigned by any party without the written consent of the other parties, provided however, that any party may assign this Agreement to an entity which controls, is controlled by, or is under common control with such party by providing notice of such assignment to the other parties. Further, a change of control event caused by the divestment by ING Groep N.V. of ING U.S., Inc. shall not be deemed to be an assignment of this Agreement.
Appears in 1 contract
Sources: Overseas Marketing Contract