Establishment and Designation of Series The establishment and designation of any Series or class of Shares shall be effective upon the resolution by a majority of the then Board of Trustees, adopting a resolution which sets forth such establishment and designation and the relative rights and preferences of such Series or class. Each such resolution shall be incorporated herein by reference upon adoption. Each Series shall be separate and distinct from any other Series and shall maintain separate and distinct records on the books of the Trust, and the assets and liabilities belonging to any such Series shall be held and accounted for separately from the assets and liabilities of the Trust or any other Series. Shares of each Series or class established pursuant to this Section 6, unless otherwise provided in the resolution establishing such Series, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration received by the Trust for the issue or sale of Shares of a particular Series, together with all assets in which such consideration is invested or reinvested, all income, earnings, profits, and proceeds thereof from whatever source derived, including, without limitation, any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds in whatever form the same may be, shall irrevocably be held with respect to that Series for all purposes, subject only to the rights of creditors with respect to that Series, and shall be so recorded upon the books of account of the Trust. Such consideration, assets, income, earnings, profits and proceeds thereof, from whatever source derived, including, without limitation, any proceeds derived from the sale, exchange or liquidation of such assets, and any funds or payments derived from any reinvestment of such proceeds, in whatever form the same may be, are herein referred to as "assets held with respect to" that Series. In the event that there are any assets, income, earnings, profits and proceeds thereof, funds or payments which are not readily identifiable as assets held with respect to any particular Series (collectively "General Assets"), the Board of Trustees shall allocate such General Assets to, between or among any one or more of the Series in such manner and on such basis as the Board of Trustees, in its sole discretion, deems fair and equitable, and any General Asset so allocated to a particular Series shall be held with respect to that Series. Each such allocation by the Board of Trustees shall be conclusive and binding upon the Shareholders of all Series for all purposes.
Establishment and Designation of Series and Classes The establishment and designation of any Series or Class shall be effective, without the requirement of Shareholder approval, upon the adoption of a resolution by not less than a majority of the then Board of Trustees, which resolution shall set forth such establishment and designation and may provide, to the extent permitted by the DSTA, for rights, powers and duties of such Series or Class (including variations in the relative rights and preferences as between the different Series and Classes) otherwise than as provided herein. Each such resolution shall be incorporated herein by reference upon adoption. Any such resolution may be amended by a further resolution of a majority of the Board of Trustees, and if Shareholder approval would be required to make such an amendment to the language set forth in this Declaration of Trust, such further resolution shall require the same Shareholder approval that would be necessary to make such amendment to the language set forth in this Declaration of Trust. Each such further resolution shall be incorporated herein by reference upon adoption. Each Series shall be separate and distinct from any other Series, separate and distinct records on the books of the Trust shall be maintained for each Series, and the assets and liabilities belonging to any such Series shall be held and accounted for separately from the assets and liabilities of the Trust or any other Series. Each Class of the Trust shall be separate and distinct from any other Class of the Trust. Each Class of a Series shall be separate and distinct from any other Class of the Series. As appropriate, in a manner determined by the Board of Trustees, the liabilities belonging to any such Class shall be held and accounted for separately from the liabilities of the Trust, the Series or any other Class and separate and distinct records on the books of the Trust for the Class shall be maintained for this purpose. Subject to Article II hereof, each such Series shall operate as a separate and distinct investment medium, with separately defined investment objectives and policies. Shares of each Series (and Class where applicable) established and designated pursuant to this Section 6, unless otherwise provided to the extent permitted by the DSTA, in the resolution establishing and designating such Series or Class, shall have the following rights, powers and duties:
Resignation of NCPS NCPS may resign and be discharged from the performance of its duties hereunder at any time by giving fifteen (15) business days prior written notice to the Broker and the Issuer specifying a date when such resignation shall take effect. Upon any such notice of resignation, the Broker and Issuer jointly shall appoint a successor NCPS hereunder prior to the effective date of such resignation. The retiring NCPS shall transmit all records pertaining to the Escrow Funds and shall pay all Escrow Funds to the successor NCPS, after making copies of such records as the retiring NCPS deems advisable. After any retiring NCPS’s resignation, the provisions of this Escrow Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was escrow agent under this Escrow Agreement. Any corporation or association into which NCPS may be merged or converted or with which it may be consolidated shall be the escrow agent under this Escrow Agreement without further act.
Designation of Servicer (a) The servicing, administering and collection of the Pledged Contracts shall be conducted by the Person so designated from time to time in accordance with this Section 6.01. Until the Program Agent, with the consent or at the direction of the Managing Agents, gives notice to the Borrower and the Servicer of the designation of a new Servicer as provided in Section 6.01(c) below, DTCC is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Borrower hereby grants to Servicer an irrevocable power of attorney, with full power of substitution, coupled with an interest, to take in the name of the Borrower any and all steps which are necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of any kind in connection with any Pledged Contract or other Collateral.
(b) The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the reasonable determination by the Servicer that (x) the performance of its duties hereunder is no longer permissible under applicable law and (y) there is no reasonable action which the Servicer could take to make the performance of its duties hereunder permissible under applicable law. Any determination permitting the resignation of the Servicer shall be evidenced by an opinion of counsel to such effect delivered to the Program Agent.
(c) If a Servicer Default has occurred and is continuing the Program Agent shall, if requested by the Majority Managing Agents, by notice in writing to the Servicer (a copy of which shall also be delivered to the Backup Servicer), terminate the Servicer’s management, administrative, servicing, custodial and collection functions (such termination being herein called a “Servicing Transfer”). On receipt of such notice (a “Termination Notice”) (or, if later, on a date designated therein), all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Contracts, the other Collateral or otherwise shall pass to and be vested in the Program Agent or its designee pursuant to and under this Section 6.01(c); and, without limitation, the Program Agent is authorized and empowered to execute and deliver on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do any and all acts or things necessary or appropriate to effect the purpose of such Termination Notice. The Servicer agrees to cooperate with the Program Agent in effecting the termination of the responsibilities and rights of the Servicer hereunder, including, without limitation, the transfer to the Program Agent or its designee on behalf of the Lenders for administration by it of all Collections which shall at the time be held by the Servicer for deposit, or have been deposited by the Servicer in the Collection Account, or for its own account in connection with its services hereafter or thereafter received with respect to the Pledged Contracts and to assist the successor Servicer in enforcing all rights under the Pledged Contracts. All reasonable costs and expenses (including attorneys’ fees) incurred in connection with transferring the Contract Files to the successor Servicer, to reflect such succession as the Servicer pursuant to this Section 6.01, shall be paid by the replaced Servicer upon presentation of reasonable documentation of such costs and expenses; provided, however, that if the replaced Servicer fails to pay such costs and expenses promptly, the successor Servicer shall be entitled to recover such amounts in accordance with Section 2.06 or 2.07, as applicable. Upon such termination, any servicing compensation relating to periods prior to the date of termination of the replaced Servicer (including all amounts expended by the replaced Servicer that would otherwise have been reimbursable to it hereunder) shall be paid to the replaced Servicer.
(d) In the event of the Servicer’s termination hereunder, the Program Agent, with the consent of the Majority Managing Agents, shall appoint the Backup Servicer as successor Servicer, and the successor Servicer shall accept its appointment by a written assumption in form acceptable to the Program Agent. In the event that a successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with Section 6.01(c), the Program Agent may petition a court of competent jurisdiction to appoint any established institution as the successor to the Servicer under this Agreement. Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer, and shall be entitled to all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, that the successor Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer prior to the date that the successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of the predecessor Servicer, (ii) no obligation to pay any taxes required to be paid by the Servicer, (iii) no obligation to pay any of the fees and expenses of any other party involved in this transaction and (iv) no liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the original servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer are expressly limited to those instances of negligence or willful misconduct of the Backup Servicer in its role as successor Servicer. In connection with such appointment, subject to the limitations set forth in the definition of “Servicer Fee,” the Program Agent may, with the consent of the Majority Managing Agents, make such arrangements for the reasonable compensation of such successor Servicer as it and such successor Servicer shall agree. The Program Agent and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
(e) After a Servicing Transfer, the successor Servicer may, at the direction of the Program Agent (at the direction of the Majority Managing Agents) notify the Contract Debtors with respect to the Pledged Contracts of the interests of the Secured Parties in the Pledged Contracts and other Collateral and instruct such Contract Debtors to make payments that are due under the Pledged Contracts to the successor Servicer (or to the Program Agent or such other Person or account as the Program Agent shall designate) after the effective date of a Servicing Transfer. After a Servicing Transfer, the replaced Servicer shall have no future obligations with respect to the management, administration, servicing, custody or collection of the Pledged Contracts and the successor Servicer shall have all of such obligations, except that the replaced Servicer will transmit or cause to be transmitted directly to the successor Servicer for its own account, promptly upon receipt (but no later than two (2) Business Days thereafter), any amounts for which it has good funds (properly endorsed where required for the successor Servicer to collect them) received as payments upon or otherwise in connection with the Pledged Contracts and the replaced Servicer shall continue to do any and all things necessary to transfer the Contract Files and all books and records with respect to the Pledged Contracts hereunder. A Servicing Transfer shall not affect the rights and duties of the parties hereunder, other than those relating to the management, administration, servicing, custody or collection of the Pledged Contracts.
(f) DTCC and any other Servicer agrees that, upon its resignation or replacement as Servicer pursuant to Section 6.01(b) or (c) above, it will cooperate with the Borrower, the Program Agent and the successor Servicer in effecting the termination of its responsibilities and rights as Servicer hereunder, including, without limitation, (i) assisting the successor Servicer in enforcing all rights under the Pledged Contracts and other Collateral, (ii) transferring, promptly upon receipt, to the successor Servicer, any Collections or other amounts related to the Pledged Contracts or other Collateral received by such Servicer, (iii) transferring to the successor Servicer all Records held by or under the control of such Servicer and (iv) permitting the successor Servicer to have access to all tapes, discs, diskettes and related property containing information concerning the Pledged Contracts and other Collateral and the Records and taking all actions necessary in its control to permit the successor Servicer to use all computer software that may facilitate the Servicer’s access to and use of such information and acting as data processing agent for such successor Servicer if requested. Upon the resignation or replacement of DTCC as Servicer, DTCC shall no longer be entitled to the Servicer Fee accruing from and after the effective date of such resignation or replacement.
(g) Without the consent of each Managing Agent, the Servicer shall not be permitted to delegate any of its duties or responsibilities as Servicer to any Person other than (x) an Approved Sub-servicer and (y) except with respect to certain Charged-Off Contracts, to outside collection agencies in accordance with its customary practices. Notwithstanding the delegation by the Servicer of any of its duties or responsibilities as Servicer to any Person or the appointment of any Approved Sub-servicer pursuant to this Section 6.01(g), (i) the Servicer shall remain liable for the timely and complete performance of its duties and obligations pursuant to the terms hereof, (ii) the Servicer shall retain management information systems and sufficient servicing capability, in the reasonable judgment of the Program Agent and each Managing Agent, to perform the servicing functions described herein, and (iii) any sub-servicing agreement that may be entered into and any other transactions or services relating to the Pledged Contracts involving an Approved Sub-servicer shall be deemed to be between such sub-servicer and the Servicer alone, and none of the Lenders, the Program Agent, the Managing Agents and the Liquidity Providers shall be deemed parties thereto or shall have any obligations, duties or liabilities with respect to any Approved Sub-servicer.
ADMINISTRATION OF CONTRACT NOTICES 5 MAINTENANCE OF RECORDS 5 SEVERABILITY CLAUSE 6 SUCCESSORS IN INTEREST 6 VENUE AND GOVERNING LAW 6 MODIFICATIONS AND AMENDMENTS REQUIRED TO CONFORM TO LEGAL AND ADMINISTRATIVE GUIDELINES 6 TERMINATION 6 INSURANCE 6 INDEMNIFICATION AND HOLD HARMLESS 9 INDEPENDENT CONTRACTOR 9 SUBCONTRACTING 9 CONFLICTS OF INTEREST 10 NON-DISCRIMINATION 10 III. EDUCATIONAL PROGRAM FREE AND APPROPRIATE PUBLIC EDUCATION 11 GENERAL PROGRAM OF INSTRUCTION 11 INSTRUCTIONAL MINUTES 12 CLASS SIZE 12 CALENDARS 13 DATA REPORTING 13 LEAST RESTRICTIVE ENVIRONMENT/DUAL ENROLLMENT 14 STATEWIDE ACHIEVEMENT TESTING 14 MANDATED ATTENDANCE AT LEA MEETINGS 14 POSITIVE BEHAVIOR INTERVENTIONS AND SUPPORTS 15 STUDENT DISCIPLINE 16 IEP TEAM MEETINGS 16 SURROGATE PARENTS AND XXXXXX YOUTH 17 DUE PROCESS PROCEEDINGS 17 COMPLAINT PROCEDURES 17 STUDENT PROGRESS REPORTS/REPORT CARDS AND ASSESSMENTS 18 TRANSCRIPTS 18 STUDENT CHANGE OF RESIDENCE 19 WITHDRAWAL OF STUDENT FROM PROGRAM 19 PARENT ACCESS 19 LICENSED CHILDREN’S INSTITUTION CONTRACTORS AND RESIDENTIAL TREATMENT CENTER CONTRACTORS 19 STATE MEAL MANDATE 20 MONITORING 20 IV. PERSONNEL CLEARANCE REQUIREMENTS 21 STAFF QUALIFICATIONS 21 VERIFICATION OF LICENSES, CREDENTIALS AND OTHER DOCUMENTS 22 STAFF ABSENCE 23 48. STAFF PROFESSIONAL BEHAVIOR 23 V. HEALTH AND SAFETY MANDATES HEALTH AND SAFETY 23 FACILITIES AND FACILITIES MODIFICATIONS 24 ADMINISTRATION OF MEDICATION 24 INCIDENT/ACCIDENT REPORTING 24 CHILD ABUSE REPORTING 24 SEXUAL HARASSMENT 25 REPORTING OF MISSING CHILDREN 25 VI. FINANCIAL ENROLLMENT, CONTRACTING, SERVICE TRACKING, ATTENDANCE REPORTING AND BILLING PROCEDURES 25 RIGHT TO WITHHOLD PAYMENT 26 PAYMENT FROM OUTSIDE AGENCIES 27 PAYMENT FOR ABSENCES 27 LEA and/or NONPUBLIC SCHOOL CLOSURE DUE TO EMERGENCY 28 INSPECTION AND AUDIT 28 RATE SCHEDULE 29 DEBARMENT CERTIFICATION 29 EXHIBIT A: RATES 32 EXHIBIT B: INDIVIDUAL SERVICES AGREEMENT 34 NONPUBLIC SCHOOL/AGENCY/RELATED SERVICES PROVIDER:
Designation of Start-up Day The Closing Date is hereby designated as the "start-up day" of each of the Upper-Tier REMIC and Lower-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
Designation of Directors (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal.
(b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula:
(c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b).
(d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c).
(e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat.
(f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings.
(g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).
Designation of REMIC(s) As provided in Section 10.03 of the Series Supplement.
FORMATION OF CONTRACT This proposed purchase contract, which incorporates by reference these General Provisions and all other terms and conditions set forth in this proposed purchase contract (collectively, the “Contract”), is Buyer's offer to purchase the services and any related goods, materials, and/or other deliverables (collectively, the “Services”) described in this offer. Acceptance is strictly limited to the terms and conditions included in this offer. Unless specifically agreed to in writing by Xxxxx's Authorized Procurement Representative, Xxxxx objects to, and is not bound by, any term or condition that differs from or adds to this offer. Seller's commencement of performance or acceptance of this offer in any manner shall conclusively evidence acceptance of this offer as written. Seller’s provision of the Services shall be governed solely by this Contract. Xxxxx and Seller are referred to herein as a “Party” or collectively as the “Parties.”
Establishment and Designation of Shares The Series and classes of Shares existing as of the date of this Declaration of Trust are those Series and classes that have been established under the Prior Declaration of Trust and not heretofore terminated which are indicated on Schedule A attached hereto and made a part hereof ("Schedule A"). The establishment of any additional Series (or class) of Shares shall be effective upon the adoption by the Trustees of a resolution that sets forth the designation of, or otherwise identifies, such Series (or class), whether directly in such resolution or by reference to, or approval of, another document that sets forth the designation of, or otherwise identifies, such Series (or class) including any registration statement of the Trust or such Series (or class), any amendment and/or restatement of this Declaration of Trust and/or Schedule A or as otherwise provided in such resolution. Upon the establishment of any additional Series (or class) of Shares or the termination of any existing Series (or class) of Shares, Schedule A shall be amended to reflect the addition or termination of such Series (or class) and any officer of the Trust is hereby authorized to make such amendment; provided that amendment of Schedule A shall not be a condition precedent to the establishment or termination of any Series (or class) in accordance with this Declaration of Trust. The relative rights and preferences of the Shares of the Trust and each Series and each class thereof shall be as set forth herein and as set forth in any registration statement relating thereto, unless otherwise provided in the resolution establishing such Series or class. Shares of each Series (or class) established pursuant to this Section 6, unless otherwise provided in the resolution establishing such Series (or class) or in any registration statement relating thereto, shall have the following relative rights and preferences:
