Common use of Client Consents Clause in Contracts

Client Consents. Seller shall have made, given or obtained the Consents relating to the Subadvised Funds, and the Consents relating to the Collective Trusts and Hedge Funds required by Federated, in each case as identified on Schedule 3.1.5 and as contemplated in Section 6.2.2, and such Consents shall not have been modified or withdrawn, and shall remain in full force and effect, as of the Closing. Seller shall have obtained Consents from Consenting Clients (including with respect to the Subadvised Funds, Collective Trusts and Hedge Funds, and the Direct Account Clients and SMA Account Clients), in accordance with Section 6.2.2, to the assignment, replacement or novation of their Investment Advisory Contracts and any other applicable Other Required Client-Related Contracts such that Starting Revenue is at least equal to $14,065,615.20 and such Consents have not been withdrawn or modified, and remain in full force and effect, as of the Closing. It is agreed and understood that the failure (or deemed failure) of an underlying SMA Account Client to grant any Consent or the withdrawal by an SMA Account Client of any Consent shall not mean that the Consent of any other underlying SMA Account Client or of the Wrap Program Sponsor has not been obtained. For the purposes of this Section 7.1(c), each Implied Consent Client who does not give Seller a written Consent will be deemed to have given its Consent to the assignment of its Investment Advisory Contract or, as applicable, related Other Required Client-Related Contracts (and thus considered a Consenting Client) if: (A) Except as otherwise provided in (B) below, a negative consent letter was sent to such Implied Consent Client at least forty-five (45) days prior to the Closing and, in the case of any SMA Account Client, the applicable Wrap Program Sponsor has not refused to provide, or has not withdrawn or modified, a written Consent to the Transactions prior to the Closing as contemplated in Section 6.2.2; or (B) With respect to SMA Account Clients with whom Seller does not have a direct Investment Advisory Contract, and where the applicable Wrap Program Sponsor has not agreed to provide negative or implied Consent notices in advance of the Closing as contemplated in Section 6.2.2, if the affirmative written Consent of the Wrap Program Sponsor has been obtained and such Consent shall not have been withdrawn or modified, and shall remain in full force and effect, as of the Closing, and, in either case, before the Closing that Client has not (1) affirmatively refused to Consent, (2) terminated its Investment Advisory Contract or, as applicable, related Other Required Client-Related Contracts, or (3) withdrawn all of its assets under Seller’s management (or informed Seller, orally or in writing, that it intends to take any of these actions). With respect to any non-Consenting Client as of the Closing Date, unless otherwise agreed in writing by Federated in its sole discretion, Seller shall have terminated its investment advisory relationship (and all related Contracts) with such non-Consenting Client, and any Investment Advisory Contract, or, as applicable, related Other Required Client-Related Contracts, with such non-Consenting Client shall be a Retained Asset, and any Liabilities arising out of, resulting from or relating to such Contract (whether prior to, at or after the Closing) shall be Retained Liabilities, for purposes of this Agreement; provided, however, that if Federated agrees, in writing and in its sole discretion, that the investment advisory relationship with a non-Consenting Client shall not be terminated, such non-Consenting Client shall be deemed to be a Consenting Client.

Client Consents. (a) The Seller shall have madeuse commercially reasonable efforts, given or obtained the Consents relating subject to the Subadvised FundsSeller’s fiduciary duties and any applicable Laws, to (and the Consents relating Buyer shall provide reasonable cooperation to the Collective Trusts Seller in connection therewith) obtain the affirmative and Hedge Funds required by Federated, in each case as identified on Schedule 3.1.5 and as contemplated in Section 6.2.2, and such Consents shall not have been modified or withdrawn, and shall remain in full force and effectnegative consents, as of the Closing. Seller shall have obtained Consents from Consenting Clients (including applicable, with respect to the Subadvised FundsAdvisory Accounts specified on Schedule 6.05(a)(i) and Schedule 6.05(a)(ii) in the manner set forth below (collectively, Collective Trusts and Hedge Funds, and the Direct Account Clients and SMA Account Clients“Client Consents”), in accordance with Section 6.2.2, to . Promptly after the assignment, replacement or novation of their Investment Advisory Contracts and any other applicable Other Required Client-Related Contracts such that Starting Revenue is at least equal to $14,065,615.20 and such Consents have not been withdrawn or modified, and remain in full force and effect, as of the Closing. It is agreed and understood that the failure (or deemed failure) of an underlying SMA Account Client to grant any Consent or the withdrawal by an SMA Account Client of any Consent shall not mean that the Consent of any other underlying SMA Account Client or of the Wrap Program Sponsor has not been obtained. For the purposes date of this Section 7.1(c)Agreement, each Implied Consent Client who does not give Seller a written Consent will be deemed to have given its Consent to the assignment of its Investment Advisory Contract or, as applicable, related Other Required Client-Related Contracts (and thus considered a Consenting Client) if: (A) Except as otherwise provided but in (B) below, a negative consent letter was sent to such Implied Consent Client any event at least forty-five (45) days in advance of the Closing, the Seller will send either an affirmative consent notice or a negative consent notice to each Client of an Advisory Account, 114399-0014/143865664.11 in each case as specified on Schedule 6.05(a)(i) and Schedule 6.05(a)(ii) and in the applicable form attached to this Agreement as Exhibit B-1 or Exhibit B-2 (a “Consent Notice”). If affirmative Client Consent is not received from any such Client (whether sent an affirmative or negative Consent Notice) of an Advisory Account within thirty (30) days after the applicable Consent Notice is sent, then the Seller will send a follow-up notice to each such Client promptly following the expiration of such 30-day period, in a form agreed between the Parties (the “Second Consent Notice”). The Parties agree that Client Consent shall be deemed obtained for all purposes under this Agreement as follows: (i) with respect to the Advisory Accounts requiring affirmative Client Consent as listed on Schedule 6.05(a)(i), upon receipt of the affirmative written Client Consent, and (ii) with respect to the Advisory Accounts permitting negative Client Consent as listed on Schedule 6.05(a)(ii), upon the earlier of (A) receipt of the affirmative written Client Consent or (B) fifteen (15) days following delivery of the Second Consent Notice by the Seller; provided, however, that any Client who has informed the Seller, whether orally or in writing of its intention to terminate its Investment Advisory Contract prior to the Closing andshall be deemed not to have provided its consent for any purpose under this Agreement unless, in the case of any SMA Account Client, the applicable Wrap Program Sponsor has not refused to provide, or has not withdrawn or modified, a written Consent to the Transactions prior to the Closing as contemplated in Section 6.2.2; or (B) With respect to SMA Account Clients with whom Seller does not have a direct Investment Advisory Contract, and where the applicable Wrap Program Sponsor has not agreed to provide negative or implied Consent notices in advance of the Closing as contemplated in Section 6.2.2, if the affirmative written Consent of the Wrap Program Sponsor has been obtained and such Consent shall not have been withdrawn or modified, and shall remain in full force and effect, as of the Closing, and, in either case, before the Closing that Client has not (1) affirmatively refused to Consent, (2) terminated its Investment Advisory Contract or, as applicable, related Other Required Client-Related Contracts, or (3) withdrawn all of its assets under Seller’s management (or informed Seller, orally or in writing, that it intends to take any of these actions). With respect to any non-Consenting Client as of the Closing Date, unless such notice shall have been rescinded or withdrawn. Furthermore, any new Client that enters into an Investment Advisory Contract with respect to a New Advisory Account during the Interim Period that does not otherwise agreed provide an affirmative Client Consent shall be deemed to have given such Client Consent if such Client signs an Investment Advisory Contract containing the required Client Consent to the assignment of such Investment Advisory Contract. Notwithstanding anything to the contrary contained in writing this Agreement, the Parties acknowledge and agree that neither the Seller nor any of its Affiliates shall (1) use any fiduciary authority or control the Seller or such Affiliate may have with respect to a Client to cause the sponsor of the Client or any other fiduciary of a Client, if any, to provide any necessary Client Consent or to take any other action contemplated by Federated this Section 6.05(a), (2) provide investment advice (within the meaning of ERISA, Section 4975 of the Code or otherwise) with respect to any decision by any sponsor of any Client or any other fiduciary of a Client, if any, to provide any necessary Client Consent as contemplated by this Section 6.05(a) or (3) take any other action in its sole discretionobtaining any necessary Client Consent that could reasonably be expected to result in a violation of Section 406(b) of ERISA or Section 4975(c)(1)(E) or (F) of the Code with respect to any Plan Client. The Parties agree that if any affirmative consent is revoked by a Client prior to the Closing, such Client shall not be considered to have consented. The Parties also acknowledge and agree that, with respect to discretionary or model-based separately managed account programs, the sponsors of such programs may impose requirements with respect to the process of, and timing for, obtaining consents from underlying Clients, and the Parties agree to reasonably cooperate together, and with such program sponsors, to accommodate any such program sponsor’s requirements (subject to Section 6.03(b)(ii)). (b) The Seller shall have terminated its investment advisory relationship use commercially reasonable efforts to keep the Buyer apprised as soon as practicable of any material developments related to the Seller’s solicitation of the Client Consents. If the Seller has not received the Client Consent (and all related Contractsor deemed Client Consent) with such non-Consenting Client, and of any Investment Advisory ContractContract in accordance with Section 6.05(a), or, as applicable, related Other Required Client-Related Contracts, with such non-Consenting Client shall be a Retained Asset, then from and any Liabilities arising out of, resulting from or relating to such Contract (whether prior to, at or after the Closing, the Seller shall terminate the Advisory Account for which Client Consent (or deemed Client Consent) was not received in accordance with its terms. (c) No later than three (3) Business Days prior to the Closing, the Seller shall be Retained Liabilitiesprovide the Buyer with an updated version of Schedule B reflecting any New Advisory Accounts and reflecting which Advisory Accounts have consented to the Transactions. If the Seller enters into 114399-0014/143865664.11 any New Advisory Accounts after the updated version of Schedule B is provided to the Buyer and prior to the Closing, the Seller shall provide the Buyer with a further updated version of Schedule B reflecting such additional New Advisory Accounts and reflecting which Advisory Accounts have consented to the Transactions. (d) If an Advisory Account Client consents to the assignment of the Client’s investment management agreement for the Client’s Advisory Account during the Interim Period, and such Client overtly expresses a desire to complete the assignment and have an advisory Subsidiary of the Buyer commence management of the Client’s Advisory Account prior to the Closing, and the Buyer is willing to have a designated advisory Subsidiary of the Buyer commence such management prior to the Closing, the Seller and the Buyer shall reasonably cooperate to effectuate the assignment of such Client’s Advisory Account to the applicable designated advisory Subsidiary of the Buyer in the best interest of such Client prior to the Closing. If the foregoing occurs, the “Closing Date” and the Closing with respect to such Advisory Account shall, for purposes of this Agreement; providedArticles 2 and 3, howeverand Sections 9.02(b) and 9.03(b), that if Federated agrees, in writing and in its sole discretion, that the investment advisory relationship with a non-Consenting Client shall not be terminated, such non-Consenting Client shall be deemed to be a Consenting the date and time, respectively, on which such assignment of such Client’s Advisory Account is effected.

Client Consents. (i) With respect to each Client whose Investment Contract requires written consent of the Client in order to effectuate an assignment of the Investment Contract (an “Affirmative Consent Client”), within three (3) Business Days following the date of this Agreement, Seller shall have made, given or obtained mail (via regular mail) to each such Client a notice in the Consents relating form of Exhibit G-1. With respect to the Subadvised Funds, and the Consents relating to the Collective Trusts and Hedge Funds required by Federated, in each case as identified on Schedule 3.1.5 and as contemplated in Section 6.2.2, and such Consents shall any Client whose Investment Contract does not have been modified or withdrawn, and shall remain in full force and effect, as require written consent of the Closing. Client in order to effectuate an assignment of the Investment Contract (a “Negative Consent Client”), within three (3) Business Days following the date of this Agreement, Seller shall have obtained Consents from Consenting Clients mail (including with via regular mail) to each such Client a notice in the form of Exhibit G-2 (the “Initial Notice”). With respect to the Subadvised Funds, Collective Trusts and Hedge Funds, and the Direct Account Clients and SMA Account Clients), in accordance with Section 6.2.2, to the assignment, replacement or novation of their Investment Advisory Contracts and any other applicable Other Required Client-Related Contracts such that Starting Revenue is at least equal to $14,065,615.20 and such Consents have not been withdrawn or modified, and remain in full force and effect, as of the Closing. It is agreed and understood that the failure (or deemed failure) of an underlying SMA Account Client to grant any Consent or the withdrawal by an SMA Account Client of any Consent shall not mean that the Consent of any other underlying SMA Account Client or of the Wrap Program Sponsor has not been obtained. For the purposes of this Section 7.1(c), each Implied Negative Consent Client who has not signed and returned to Seller a copy of the Initial Notice within twenty (20) days of mailing of such notice, Seller shall mail (via regular mail) to each such Negative Consent Client a notice in the form of Exhibit H not less than twenty (20) days after delivery of the Initial Notice and at least twenty (20) days prior to the Closing. (ii) An Affirmative Consent Client properly receiving a notice pursuant to Section 5.3(e)(i) shall be treated as having given a Client Consent if it signs and returns to Seller a copy of the notice in the form of Exhibit G-1, provided such Client does not give any of the indications set forth in Section 5.3(e)(iii)(C). A Negative Consent Client properly receiving notices pursuant to Section 5.3(e)(i) shall be treated as having given a Client Consent if it does not sign and return to Seller a written copy of the notice in the form of Exhibit G-2 or Exhibit H, if (1) the notices described in Section 5.03(e)(i) have been sent to such Negative Consent will be deemed Client in the timeframes required and (2) before the Business Day immediately preceding the Closing Date, such Negative Consent Client has not (w) affirmatively refused to have given its Consent to the assignment of its Investment Advisory Contract or, as applicable, related Other Required Client-Related Contracts (and thus considered a Consenting Client) if: (A) Except as otherwise provided in (B) below, a negative consent letter was sent to such Implied Consent Client at least forty-five (45) days prior to the Closing and, in the case of any SMA Account Client, the applicable Wrap Program Sponsor has not refused to provide, or has not withdrawn or modified, a written Consent to the Transactions prior to the Closing as contemplated in Section 6.2.2; or (B) With respect to SMA Account Clients with whom Seller does not have a direct Investment Advisory Contract, and where the applicable Wrap Program Sponsor has not agreed to provide negative or implied Consent notices in advance of the Closing as contemplated in Section 6.2.2, if the affirmative written Consent of the Wrap Program Sponsor has been obtained and such Consent shall not have been withdrawn or modified, and shall remain in full force and effect, as of the Closing, and, in either case, before the Closing that Client has not (1) affirmatively refused to Consent, (2x) terminated its Investment Advisory Contract orContract, as applicable, related Other Required Client-Related Contracts, or (3y) withdrawn all of its assets under Seller’s management (or informed Seller, orally or in writing, that it intends to take any of these actions). With respect to any non-Consenting Client as of the Closing Date, unless otherwise agreed in writing by Federated in its sole discretion, Seller shall have terminated its investment advisory relationship (and all related Contracts) with such non-Consenting Client, and any Investment Advisory Contract, AUM or, as applicable, related Other Required Client-Related Contracts, with such non-Consenting Client shall be a Retained Asset, and any Liabilities arising out of, resulting from or relating to such Contract (whether prior to, at or after the Closing) shall be Retained Liabilities, for purposes of this Agreement; provided, however, that if Federated agrees, in writing and in its sole discretion, that the investment advisory relationship with a non-Consenting Client shall not be terminated, such non-Consenting Client shall be deemed to be a Consenting Client.