Documents Records and Funds in Possession of Master Servicer to be Held for the Trustee Notwithstanding any other provisions of this Agreement, the Master Servicer shall transmit to the Trustee as required by this Agreement all documents and instruments in respect of a Mortgage Loan coming into the possession of the Master Servicer from time to time and shall account fully to the Trustee for any funds received by the Master Servicer or which otherwise are collected by the Master Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All Mortgage Files and funds collected or held by, or under the control of, the Master Servicer in respect of any Mortgage Loans, whether from the collection of principal and interest payments or from Liquidation Proceeds, including but not limited to, any funds on deposit in the Certificate Account, shall be held by the Master Servicer for and on behalf of the Trustee and shall be and remain the sole and exclusive property of the Trustee, subject to the applicable provisions of this Agreement. The Master Servicer also agrees that it shall not create, incur or subject any Mortgage File or any funds that are deposited in the Certificate Account, Distribution Account or any Escrow Account, or any funds that otherwise are or may become due or payable to the Trustee for the benefit of the Certificateholders, to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance, or assert by legal action or otherwise any claim or right of setoff against any Mortgage File or any funds collected on, or in connection with, a Mortgage Loan, except, however, that the Master Servicer shall be entitled to set off against and deduct from any such funds any amounts that are properly due and payable to the Master Servicer under this Agreement.
Trustee to Retain Possession of Certain Insurance Policies and Documents The Trustee (or the Custodian, as directed by the Trustee), shall retain possession and custody of the originals (to the extent available) of any Primary Mortgage Insurance Policies, or certificate of insurance if applicable, and any certificates of renewal as to the foregoing as may be issued from time to time as contemplated by this Agreement. Until all amounts distributable in respect of the Certificates have been distributed in full and the Master Servicer otherwise has fulfilled its obligations under this Agreement, the Trustee (or its Custodian, if any, as directed by the Trustee) shall also retain possession and custody of each Mortgage File in accordance with and subject to the terms and conditions of this Agreement. The Master Servicer shall promptly deliver or cause to be delivered to the Trustee (or the Custodian, as directed by the Trustee), upon the execution or receipt thereof the originals of any Primary Mortgage Insurance Policies, any certificates of renewal, and such other documents or instruments that constitute portions of the Mortgage File that come into the possession of the Master Servicer from time to time.
Documents, Records and Funds in Possession of the Servicer to be Held for the Trustee The Servicer shall transmit to the Trustee or, at the direction of the Trustee, the Custodian as required by this Agreement all documents and instruments in respect of a Mortgage Loan coming into the possession of the Servicer from time to time and shall account fully to the Trustee for any funds received by the Servicer or which otherwise are collected by the Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. The documents constituting the Servicing File shall be held by the Servicer as custodian and bailee for the Trustee. All Mortgage Files and funds collected or held by, or under the control of, the Servicer in respect of any Mortgage Loans, whether from the collection of principal and interest payments or from Liquidation Proceeds, including but not limited to, any funds on deposit in the Servicer Custodial Account, shall be held by the Servicer for and on behalf of the Trustee and shall be and remain the sole and exclusive property of the Trustee, subject to the applicable provisions of this Agreement. The Servicer also agrees that it shall not knowingly create, incur or subject any Mortgage File or any funds that are deposited in the Servicer Custodial Account, Certificate Account or any Escrow Account, or any funds that otherwise are or may become due or payable to the Trustee for the benefit of the Certificateholders, to any claim, lien, security interest, judgment, levy, writ of attachment or other encumbrance created by the Servicer, or assert by legal action or otherwise any claim or right of setoff against any Mortgage File or any funds collected on, or in connection with, a Mortgage Loan, except, however, that the Servicer shall be entitled to set off against and deduct from any such funds any amounts that are properly due and payable to the Servicer under this Agreement.
No Construction Loans No Mortgage Loan was made in connection with (i) the construction or rehabilitation of a Mortgage Property or (ii) facilitating the trade-in or exchange of a Mortgaged Property other than a construction-to-permanent loan which has converted to a permanent Mortgage Loan;
Construction Phase - Administration of the Construction Contract INDICATE IN STATEMENT OF WORK “NOT APPLICABLE” IF SECTION IS NOT APPLICABLE 1.1.9.1. The Construction Phase will commence with the award of the Construction Contract to a selected vendor (“Contractor”) and will terminate when final payment is made by the State to the Contractor. In any event, the construction phase will not extend 60 days beyond the substantial completion date unless extended by change order. If such extension occurs, additional costs due to the ARCHITECT/ENGINEER shall be negotiated with the State. 1.1.9.2. The ARCHITECT/ENGINEER shall work with the State during the construction of the Project to provide the administration of the contract between the State and the Contractor in accordance with the terms herein and consistent with the contract between the State and the Contractor, and the extent of his/her duties and responsibilities and the limitations of his/her authority as assigned therein shall not be modified without his/her written consent. 1.1.9.3. The ARCHITECT/ENGINEER shall advise and consult with the State, and all of the State's instructions to the Contractor shall be issued through the ARCHITECT/ENGINEER after authorization by the State. 1.1.9.4. The ARCHITECT/ENGINEER shall, at all times, have access to the work wherever it is in preparation or progress. 1.1.9.5. The ARCHITECT/ENGINEER shall make periodic visits to the Project site, at least biweekly, and shall make such further visits when reasonably requested by the State, as to familiarize himself/herself with the progress and quality of the work performed and as to determine, on the basis of such visits, if such progress and quality are in accordance with the Contract Documents. The ARCHITECT/ENGINEER shall be responsible for project meeting minutes. In addition to this, the ARCHITECT/ENGINEER shall periodically report his/her findings thereon to the State, at such times as in the exercise of his/her professional judgment such findings are appropriate and at least monthly, at the conference provided for in Section 1.1.9.6, and further at such times as the State may reasonably request. The ARCHITECT/ENGINEER shall not be required to make exhaustive or continuous on-site inspections, except as required in the exercise of his/her professional judgment for said reports and, except in particular, to fulfill the commissioning requirements. The ARCHITECT/ENGINEER shall not be responsible for construction means, methods, techniques, sequences or procedures or for safety precautions and programs in connection with the work, and he/she shall not be responsible for the Contractor's failure to carry out the work in accordance with the Contract Documents except as provided for herein specifically between the State and the ARCHITECT/ENGINEER. 1.1.9.6. In preparing the bid documents, to the extent that the ARCHITECT/ENGINEER utilizes sub- consultants for their expertise, such as, but not limited to: Landscape Architects, Civil, Structural, Mechanical, and Electrical Engineers, these consultants, in effect, become an extension of the ARCHITECT/ENGINEER. Where the term ARCHITECT/ENGINEER is used in Section 1.1.9.2 as well as 1.1.9.5, it shall include those sub-consultants when work is being performed in their area of expertise. For example, the Mechanical Engineer would inspect the under slab plumbing before it is backfilled, but then wouldn’t necessarily be needed on site until the rest of the mechanical systems are being installed. The sub-consultant shall also be required to periodically inspect the progress of the “As-builts” and verify that they are up-to-date and verify such to the ARCHITECT/ENGINEER, before the ARCHITECT/ENGINEER issues the certificate of payment for that pay period. 1.1.9.7. Based upon his/her determinations and reports made under Section 1.1.9.5 of this Agreement and upon the Contractor's applications for payment, the ARCHITECT/ENGINEER shall once every month, after an on-site conference between the State, the Contractor and the ARCHITECT/ENGINEER, determine the amount then owing to the Contractor and shall then issue a certificate of payment for the amount agreed upon. The issuance of a Certificate for Payment shall constitute a representation by the ARCHITECT/ENGINEER to the State, based on such ARCHITECT/ENGINEER'S determination and report and the data supplied to him/her by the Contractor (without affecting his/her duties defined in Section 1.1.9.5.), that the work has progressed to the point indicated; that the quality of the work is in accordance with the Contract Documents (subject to the results of any specified subsequent tests required by the Contract Documents, to immaterial and insubstantial deviations from the Contract Documents, which will be corrected prior to completion, and to any further specific qualifications stated in the Certificate for Payment); and that the Contractor is entitled to such payment in the amount certified. Provided, however, the issuance of such certificate will not affect any obligations of the Contractor to the State. By issuing a certificate for payment, the ARCHITECT/ENGINEER shall not be deemed to represent that he/she has made any examination to ascertain how and for what purpose the Contractor has used the monies paid on account of the contract sum. ARCHITECT/ENGINEER shall not accept any part of the work on behalf of the State; ARCHITECT/ENGINEER may only recommend acceptance. Final acceptance is a right reserved solely to the State. 1.1.9.8. The ARCHITECT/ENGINEER shall be, in the first instance, the interpreter of the requirements of all Construction Documents, and shall have all requisite authority relating thereto for the purposes of authorizing the Contractor to proceed or stop with any component of the project after consultation and agreement with the State. The ARCHITECT/ENGINEER shall not be liable to the State for any loss or cost incurred by the State arising from delays in the construction schedule caused by any decision made by the ARCHITECT/ENGINEER in the reasonable exercise of professional judgment either to exercise or not to exercise his/her authority to stop the Work. 1.1.9.9. The ARCHITECT/ENGINEER shall review and respond to shop drawings, samples, and other submissions of the Contractor as in conformance with the design concept and information in the Contract Documents and the designs and plans relating to the project until approved or not requiring re-submission. The ARCHITECT/ENGINEER shall also review the submittal log at construction meetings and report to the State, on a monthly basis, their findings thereon. 1.1.9.10. The ARCHITECT/ENGINEER shall prepare all change orders and supporting data for the State's approval. 1.1.9.11. The ARCHITECT/ENGINEER shall conduct inspections to determine the Dates of Substantial Completion and Final Completion and shall receive written guarantees and related documents assembled by the Contractors and shall issue a final certificate of payment in accordance with Section 1.1.9.6. 1.1.9.12. The ARCHITECT/ENGINEER shall be responsible for system commissioning in accordance with the BGS Design Guidelines and as indicated in the BGS Commissioning Guidelines. Please see the BGS website xxxx://xxx.xxxxxxx.xxx/facilities/forms . The ARCHITECT/ENGINEER shall inspect, and document, each and every system to ensure that it complies with design intent, including but not limited to: system installation, system operation, and seasonal changeover. 1.1.9.13. Except in the manner specifically provided for herein, the ARCHITECT/ENGINEER shall not be responsible to the State for the acts or omissions of the Contractor or any of the Contractor’s agents or employees, or any other person not an employee or agent of the ARCHITECT/ENGINEER performing work on the Project. The ARCHITECT/ENGINEER shall be responsible for and shall pay the amount of any increase in the total Contract Price or the total Change Order(s) Price, which increase results from an error, inconsistency, or omission in the Contract Documents or instructions. 1.1.9.14. ARCHITECT/ENGINEER shall furnish to the State, a complete set of marked-up drawings and specifications showing all the changes to the Construction Documents made by Addenda, Change Orders, Shop Drawings, RFIs and other information received from the Clerk; and General Contractor’s As-built markups. The changes to the drawings are to be created on a separate layer in the DWG set and highlighted in a box, cloud or the like in the PDF set. The specifications are also to differentiate the changes made by highlighting in a box, cloud, etc. and be provided in Microsoft Word. These drawings and specifications shall be supplied within three (3) months of the date of Substantial Completion and before final payment. 1.1.9.15. Architect/Engineer (and design team members as required) shall conduct a one-year warranty inspection of the completed construction project between the eleventh and twelfth month from the date of substantial completion and shall issue a list of defective items needing correction to the Contractor.
Documents, Records and Funds in Possession of Master Servicer To Be Held for Trustee (a) The Master Servicer shall transmit and each Servicer (to the extent required by the related Servicing Agreement) shall transmit to the Trustee or Custodian such documents and instruments coming into the possession of the Master Servicer or such Servicer from time to time as are required by the terms hereof, or in the case of the Servicers, the applicable Servicing Agreement, to be delivered to the Trustee or Custodian. Any funds received by the Master Servicer or by a Servicer in respect of any Mortgage Loan or which otherwise are collected by the Master Servicer or by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be held for the benefit of the Trustee and the Certificateholders subject to the Master Servicer's right to retain or withdraw from the Master Servicer Collection Account the Master Servicing Compensation and other amounts provided in this Agreement, and to the right of each Servicer to retain its Servicing Fee and other amounts as provided in the applicable Servicing Agreement. The Master Servicer shall, and (to the extent provided in the applicable Servicing Agreement) shall cause each Servicer to, provide access to information and documentation regarding the Mortgage Loans to the Trustee, its agents and accountants at any time upon reasonable request and during normal business hours, and to Certificateholders that are savings and loan associations, banks or insurance companies, the Office of Thrift Supervision, the FDIC and the supervisory agents and examiners of such Office and Corporation or examiners of any other federal or state banking or insurance regulatory authority if so required by applicable regulations of the Office of Thrift Supervision or other regulatory authority, such access to be afforded without charge but only upon reasonable request in writing and during normal business hours at the offices of the Master Servicer designated by it. In fulfilling such a request the Master Servicer shall not be responsible for determining the sufficiency of such information. (b) All Mortgage Files and funds collected or held by, or under the control of, the Master Servicer, in respect of any Mortgage Loans, whether from the collection of principal and interest payments or from Liquidation Proceeds or Insurance Proceeds, shall be held by the Master Servicer for and on behalf of the Trustee and the Certificateholders and shall be and remain the sole and exclusive property of the Trustee; provided, however, that the Master Servicer and each Servicer shall be entitled to setoff against, and deduct from, any such funds any amounts that are properly due and payable to the Master Servicer or such Servicer under this Agreement or the applicable Servicing Agreement.
Actions of Custodian Based on Proper Instructions and Special Instructions So long as and to the extent that the Custodian acts in accordance with (a) Proper Instructions or Special Instructions, as the case may be, and (b) the terms of this Agreement, the Custodian shall not be responsible for the title, validity or genuineness of any property, or evidence of title thereof, received by it or delivered by it pursuant to this Agreement.
Limitation of Vendor Indemnification and Similar Clauses This is a requirement of the TIPS Contract and is non-negotiable TIPS, a department of Region 8 Education Service Center, a political subdivision, and local government entity of the State of Texas, is prohibited from indemnifying third-parties (pursuant to the Article 3, Section 52 of the Texas Constitution) except as otherwise specifically provided for by law or as ordered by a court of competent jurisdiction. Article 3, Section 52 of the Texas Constitution states that "no debt shall be created by or on behalf of the State … " and the Texas Attorney General has opined that a contractually imposed obligation of indemnity creates a "debt" in the constitutional sense. Tex. Att'y Gen. Op. No. MW-475 (1982). Thus, contract clauses which require TIPS to indemnify Vendor, pay liquidated damages, pay attorney's fees, waive Vendor's liability, or waive any applicable statute of limitations must be deleted or qualified with ''to the extent permitted by the Constitution and Laws of the State of Texas." Does Vendor agree? Yes, I Agree TIPS, a department of Region 8 Education Service Center, a political subdivision, and local government entity of the State of Texas, does not agree to binding arbitration as a remedy to dispute and no such provision shall be permitted in this Agreement with TIPS. Vendor agrees that any claim arising out of or related to this Agreement, except those specifically and expressly waived or negotiated within this Agreement, may be subject to non-binding mediation at the request of either party to be conducted by a mutually agreed upon mediator as prerequisite to the filing of any lawsuit arising out of or related to this Agreement. Mediation shall be held in either Camp or Titus County, Texas. Agreements reached in mediation will be subject to the approval by the Region 8 ESC's Board of Directors, authorized signature of the Parties if approved by the Board of Directors, and, once approved by the Board of Directors and properly signed, shall thereafter be enforceable as provided by the laws of the State of Texas. Does Vendor agree? Yes, Vendor agrees Does Vendor agree? Yes, Vendor agrees Vendor agrees that nothing in this Agreement shall be construed as a waiver of sovereign or government immunity; nor constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to Region 8 Education Service Center or its TIPS Department. The failure to enforce, or any delay in the enforcement, of any privileges, rights, defenses, remedies, or immunities available to Region 8 Education Service Center or its TIPS Department under this Agreement or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. Does Vendor agree? Yes, Vendor agrees Vendor agrees that TIPS and TIPS Members shall not be liable for interest or late-payment fees on past-due balances at a rate higher than permitted by the laws or regulations of the jurisdiction of the TIPS Member. Funding-Out Clause: Vendor agrees to abide by the applicable laws and regulations, including but not limited to Texas Local Government Code § 271.903, or any other statutory or regulatory limitation of the jurisdiction of any TIPS Member, which requires that contracts approved by TIPS or a TIPS Member are subject to the budgeting and appropriation of currently available funds by the entity or its governing body.
Trustee’s Application for Instructions from the Company Any application by the Trustee for written instructions from the Company (other than with regard to any action proposed to be taken or omitted to be taken by the Trustee that affects the rights of the Holders of the Notes under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable to the Company for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer that the Company has indicated to the Trustee should receive such application actually receives such application, unless any such officer shall have consented in writing to any earlier date), unless, prior to taking any such action (or the effective date in the case of any omission), the Trustee shall have received written instructions in accordance with this Indenture in response to such application specifying the action to be taken or omitted.
Certain Representations; Reservation and Availability of Shares of Common Stock or Cash (a) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, and the Warrants have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Warrant Agent pursuant hereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits thereof; in each case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) The Company covenants and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants. (c) The Warrant Agent will create a special account for the issuance of Common Stock upon the exercise of Warrants. (d) The Company further covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock upon exercise of the Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock in a name other than that of the Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any certificate for shares of Common Stock upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such tax or governmental charge being payable by the Holder of such Warrant Certificate at the time of surrender) or until it has been established to the Company’s reasonable satisfaction that no such tax or governmental charge is due.
