Prior Contracts This Contract supersedes and terminates, as of the date hereof, all prior contracts between the Fund and the Custodian relating to the custody of the Fund's assets.
SUB-CONTRACTS (a) The Administrator may sub-contract or delegate the performance of all or any of its powers and obligations under this Agreement, provided that (but subject to Clause 3.2(b) herein):
(i) the prior written consent of the Mortgages Trustee and Funding to the proposed arrangement (including, if Funding considers it necessary after consulting with the Security Trustee, approving any contract which sets out the terms on which such arrangements are to be made) has been obtained, the Security Trustee has been consulted and notification has been given to each of the Rating Agencies;
(ii) where the arrangements involve the custody or control of any Mortgage Loan Files and/or Title Deeds relating to the Mortgage Portfolio for the purpose of performing any delegated Services, the sub-contractor or delegate has executed an acknowledgement in writing acceptable to Funding and the Security Trustee to the effect that any such Mortgage Loan Files and/or Title Deeds are and will be held to the order of the Mortgages Trustee (as trustee for the Beneficiaries);
(iii) where the arrangements involve or may involve the receipt by the sub-contractor or delegate of monies belonging to the Beneficiaries which, in accordance with this Agreement, are to be paid into the relevant Collection Account, the sub-contractor or delegate has executed a declaration in writing acceptable to the Beneficiaries that any such monies held by it or to its order are held on trust for the Beneficiaries and will be paid forthwith into the relevant Collection Account in accordance with the terms of the Mortgages Trust Deed;
(iv) any such sub-contractor or delegate has executed a written waiver of any Security Interest arising in connection with such delegated Services (to the extent that such Security Interest relates to the Mortgage Portfolio or any amount referred to in (iii) above); and
(v) neither the Mortgages Trustee, the Security Trustee nor the Beneficiaries shall have any liability for any costs, charges or expenses payable to or incurred by such sub-contractor or delegate or arising from the entering into, the continuance or the termination of any such arrangement.
(b) The provisos to Clause 3.2(a) (i), (ii) and (iii) herein shall not apply:
(i) to the engagement by the Administrator of:
(1) any receiver, solicitor, insurance broker, valuer, surveyor, accountant, estate agent, insolvency practitioner, auctioneer, bailiff, debt counsellor, tracing agent, property management agent, licensed or qualified conveyancer or other professional adviser acting as such; or
(2) any locksmith, builder or other contractor acting as such in relation to a Mortgaged Property, in any such case being a person or persons whom the Administrator would be willing to appoint in respect of its own mortgages in connection with the performance by the Administrator of any of its obligations or functions or in connection with the exercise of its powers under this Agreement; or
(ii) to any delegation to any wholly-owned subsidiary of the Seller from time to time.
(c) The Mortgages Trustee and/or Funding and the Security Trustee may require the Administrator to assign to the Mortgages Trustee any rights which the Administrator may have against any sub-contractor or delegate arising from the performance of services by such person in association with any matter contemplated by this Agreement and the Administrator acknowledges that such rights assigned to the Mortgages Trustee will be exercised by the Mortgages Trustee as trustee for the Beneficiaries subject to the terms of the Mortgages Trust Deed.
(d) Notwithstanding any sub-contracting or delegation of the performance of the Administrator's obligations under this Agreement:
(i) the Administrator shall not thereby be released or discharged from any liability hereunder;
(ii) the Administrator shall remain responsible for the performance of the obligations of the Administrator under this Agreement;
(iii) the performance or non-performance or the manner of performance of any sub-contractor or delegate of any of the Services shall not affect the Administrator's obligations under this Agreement;
(iv) any breach in the performance of the Services by any sub-contractor or delegate shall, subject to the Administrator being entitled for a period of twenty (20) Business Days from receipt of notice of the breach to remedy such breach by any sub-contractor or delegate, be treated as a breach of this Agreement by the Administrator; and
(v) the Security Trustee shall have no liability for any act or omission of the sub-contractor or delegate and shall have no responsibility for monitoring or investigating the suitability of any such sub-contractor or delegate.
Service Contracts (a) The Trustees may, at any time and from time to time, contract for exclusive or nonexclusive advisory, management and/or administrative services for the Trust or for any Series with any Person; and any such contract may contain such other terms as the Trustees may determine, including without limitation, authority for the Investment Adviser to determine from time to time without prior consultation with the Trustees what investments shall be purchased, held, sold or exchanged and what portion, if any, of the assets of the Trust shall be held uninvested and to make changes in the Trust's investments, and such other responsibilities as may specifically be delegated to such Person.
(b) The Trustees may also, at any time and from time to time, contract with any Persons, appointing such Persons exclusive or nonexclusive distributor or Principal Underwriter for the Shares of one or more of the Series or other securities to be issued by the Trust. Every such contract may contain such other terms as the Trustees may determine.
(c) The Trustees are also empowered, at any time and from time to time, to contract with any Persons, appointing such Person(s) to serve as custodian(s), transfer agent and/or shareholder servicing agent for the Trust or one or more of its Series. Every such contract shall comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and from time to time, to contract with any Persons to provide such other services to the Trust or one or more of the Series, as the Trustees determine to be in the best interests of the Trust and the applicable Series.
(e) The fact that:
(i) any of the Shareholders, Trustees, or officers of the Trust is a shareholder, director, officer, partner, trustee, employee, Manager, adviser, Principal Underwriter, distributor, or affiliate or agent of or for any Person with which an advisory, management or administration contract, or Principal Underwriter's or distributor's contract, or transfer, shareholder servicing or other type of service contract may be made, or that
(ii) any Person with which an advisory, management or administration contract or Principal Underwriter's or distributor's contract, or transfer, shareholder servicing or other type of service contract may be made also has an advisory, management or administration contract, or principal underwriter's or distributor's contract, or transfer, shareholder servicing or other service contract, or has other business or interests with any other Person, shall not affect the validity of any such contract or disqualify any Shareholder, Trustee or officer of the Trust from voting upon or executing the same, or create any liability or accountability to the Trust or its Shareholders, provided approval of each such contract is made pursuant to the applicable requirements of the 1940 Act.
Project Contracts Prior to the delivery of this Lease, the Company may have entered into a contract or contracts with respect to the acquisition and/or construction of the Improvements. Those contracts, and any such contracts entered into by the Company after delivery of this Lease are hereinafter referred to as the “Project Contracts.” Prior to the delivery hereof, certain work has been or may have been performed on the Improvements pursuant to said Project Contracts or otherwise. Subject to the Lender’s rights in the Project Contracts, the Company hereby conveys, transfers and assigns to the Issuer all of the Company’s rights in, but not its obligations under the Project Contracts and the Issuer hereby designates the Company as Issuer’s agent for the purpose of executing and performing the Project Contracts. After the execution hereof, the Company shall cause the Project Contracts to be fully performed by the contractor(s), subcontractor(s) and supplier(s) thereunder in accordance with the terms thereof, and the Company covenants to cause the Improvements to be acquired, constructed and/or completed in accordance with the Project Contracts. Any and all amounts received by the Issuer, the Trustee or the Company from any of the contractors or other suppliers by way of breach of contract, refunds or adjustments shall become a part of and be deposited in the Project Fund.
Business Contracts All contracts and other agreements (other than the Real Property Leases and Personal Property Leases and the Accounts Receivable) to which the Seller is a party and which are utilized in the conduct of the Business, including without limitation contracts and other agreements relating to suppliers, sales representatives, distributors, consultants, customers, purchase orders, marketing and purchasing arrangements (the "Business Contracts");
Nonassignable Contracts Anything contained herein to the contrary notwithstanding, this Agreement shall not constitute an agreement to assign any lease, license agreement, Contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets if an assignment or attempted assignment of the same without the consent of another Person would constitute a breach thereof or in any way impair the rights of Buyer or Seller thereunder. If any such consent is not obtained or if an attempted assignment would be ineffective or would impair either Seller's or Buyer's rights under any such lease, license agreement, Contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets so that Buyer would not receive all such rights, then (x) Seller shall use reasonable efforts (it being understood that such efforts shall not include any requirement of Seller or any of its Subsidiaries to expend material sums of money or grant any material financial accommodation) to provide or cause to be provided to Buyer, to the extent permitted by law, the benefits of any such lease, license agreement, Contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets and Seller shall promptly pay or cause to be paid to Buyer when received all moneys received by Seller with respect to any such lease, license agreement, contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets and (y) in consideration thereof Buyer shall pay, perform and discharge on behalf of Seller all of Seller's debts, liabilities, obligations and commitments thereunder in a timely manner and in accordance with the terms thereof. In addition, Seller shall take such other actions as may reasonably be requested by Buyer in order to place Buyer, insofar as reasonably possible, in the same position as if such lease, license agreement, Contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets had been transferred as contemplated hereby and so all the benefits and burdens relating thereto, including possession, use, risk of loss, potential for gain and dominion, control and command, shall inure to Buyer. If and when such consents and approvals are obtained, the transfer of the applicable lease, license agreement, contract, agreement, sales order, purchase order, open bid or other commitment or Acquired Assets shall be effected in accordance with the terms of this Agreement. Notwithstanding the foregoing, the provisions of this Section 2.05 shall not relieve Seller of any of its obligations under this Agreement with respect to any breach of any representations, warranties, covenants or agreements contained herein or in any of the Ancillary Agreements, or with respect to any of its indemnification obligations contained herein or therein.
SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS The Company has delivered to TCI an accurate list (which is set forth on Schedule 5.15) of all customers (persons or entities) representing 1% or more of the Company's annual revenues for the year ended December 31, 1997; provided, however, that Schedule 5.15 need not set forth more than the Company's 20 largest customers during such period. Except to the extent set forth on Schedule 5.15, none of such customers have canceled or substantially reduced or, to the knowledge of the Stockholders, are currently attempting or threatening to cancel a contract or substantially reduce utilization of the services provided by the Company. The Company has listed on Schedule 5.15 all Material Contracts (as defined below) to which the Company is a party or by which it or any of its properties are bound, other than agreements listed on Schedules 5.10, 5.14 or 5.16, (a) in existence as of the Balance Sheet Date and (b) entered into since the Balance Sheet Date, and in each case has delivered true, complete and correct copies of such agreements to TCI. For purposes of this Agreement, the term "Material Contracts" includes contracts between the Company and significant customers (as described above), joint venture or partnership agreements, contracts with any labor organization, strategic alliances, options to purchase land and other contracts which are not terminable on sixty days or less notice and involve payments by the Company in any twelve-month period in excess of $25,000. The Company has also indicated on Schedule 5.15 a summary description of all plans or projects involving the opening of new operations, expansion of existing operations, the acquisition of any personal property, business or assets requiring, in any event, the payment of more than $25,000 by the Company during any 12- month period. To the knowledge of the Stockholders, all of the Material Contracts are in full force and effect and constitute valid and binding agreements of the parties (and their successors) thereto in accordance with their respective terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to the enforcement of creditors' rights generally and by general principles of equity.
Management Contracts The Recipient agrees that from the date hereof until the date on which none of the Infrastructure Bonds, of which the proceeds were used to pay or reimburse the costs of the Project, remain outstanding (the "Agreement Term"):
a. The Recipient will not contract with any Private Person to manage the Project or any portion thereof unless all of the following conditions are met: (A) at least 50% of the compensation of the Private Person is based on a periodic, fixed fee that contains no incentive adjustments, and no amount of compensation is based on a share of net profits; (B) the compensation is reasonable in relation to the services performed; (C) the term of the contract does not exceed five (5) years (including any renewal option periods provided for in the contract); (D) if the term of the contract exceeds three (3) years, the Recipient is able to cancel the contract without penalty or cause at the end of each three-year period of the contract; (E) any automatic increases in the periodic, fixed fee may not exceed the percentage increases determined by an external standard set forth in the contract for computing increases; and (F) any new contract with a Private Person which is subject to this subparagraph F.2. will be subject to the requirements of (A) through (F) of this subparagraph F.2.a.; and
b. If the Recipient is subject to subparagraph F.2.a. above and it enters into contracts with Private Persons described in subparagraph F.2.a., and the Governing Body of the recipient numbers five (5) or more members, no more than one (1) member of the Governing Body of the Recipient may be an employee or member of the Governing Body of the Private Person. If the Governing Body of the Recipient numbers less than five (5), no member of the Governing Body of the Recipient may be an employee or member of the Governing Body of the Private Person. Similarly, if the Governing Body of the Private Person numbers five (5) or more members, no more than one (1) of those members may be an employee or member of the Governing Body of the Recipient. However, in no event may a member or employee of both the Recipient and Private Person be the Chief Executive Officer or its equivalent of the Recipient or the Private Person. Members of the Governing Body of the Recipient may not own a controlling interest in the Private Person.
Customer Contracts 6.2.1 The Redistributor should ensure that its contracts with its Customers give it all necessary rights to control and monitor Data use.
6.2.2 The Redistributor is obliged to make the contents of this Schedule available to its customers.
Major Contracts Neither INT'X.xxx nor any Material INT'X.xxx Subsidiary is a party to or subject to:
(a) Any union contract, or any employment contract or arrangement in effect (other than "at-will" employment arrangements) providing for future compensation, written or oral, with any officer, consultant, director, or employee;
(b) Any plan or contract or arrangement, written or oral, providing for non-standard bonuses, pensions, deferred compensation, retirement payments, profit-sharing or the like;
(c) Any joint venture contract or arrangement or any other agreement which has involved or is expected to involve a sharing of profits;
(d) Any OEM agreement, reseller or distribution agreement, volume purchase agreement, corporate end user sales or service agreement, reproduction or replication agreement or manufacturing agreement in which the amount involved exceeds annually, or is expected to exceed in the aggregate over the life of the contract, $50,000 or pursuant to which INT'X.xxx has granted or received manufacturing rights, most favored nation pricing provisions, or exclusive marketing, production, publishing or distribution rights related to any product, group of products or territory;
(e) Any agreement, license, franchise, permit, indenture, or authorization which has not been terminated or performed in its entirety and not renewed which may be, by its terms, terminated, impaired, or adversely affected by reason of the execution of this Agreement and all other agreements contemplated hereby, the consummation of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(f) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness incurred in the acquisition of companies or other entities or indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, or otherwise which individually is in the amount of $50,000 or more;
(g) Any license agreement in effect, either as licensor or licensee (excluding nonexclusive hardware and software licenses granted to distributors or end-users and commercially available in-licensed software applications);
(h) Any contract or agreement containing covenants purporting to limit INT'X.xxx's or the Material INT'X.xxx Subsidiaries' freedom to compete in any line of business in any geographic area; or
(i) Any contract or agreement not elsewhere specifically disclosed pursuant to this Agreement, involving the payment or receipt by INT'X.xxx of more than $250,000 in the aggregate. For purposes of this Section 3.14, a contract, agreement or arrangement shall be considered "in effect" if INT'X.xxx or any Material Subsidiary shall have any obligations or liabilities pursuant to such contract, agreement or arrangement. All contracts, arrangements, plans, agreements, leases, licenses, franchises, permits, indentures, authorizations, instruments and other commitments which are listed in the INT'X.xxx Disclosure Schedule pursuant to this Section 3.14 are valid and in full force and effect and neither INT'X.xxx nor any Material INT'X.xxx Subsidiary has, nor, to the knowledge of INT'X.xxx and the Material INT'X.xxx Subsidiaries, has any other party thereto, breached any material provisions of, or entered into default in any material respect under the terms thereof. INT'X.xxx has delivered to Parent copies of the contracts or agreements, and descriptions of any verbal agreements or arrangements, referred to in this Section 3.14 as in effect on the Prior Agreement Date.
