Common use of Number; Independent Managers Clause in Contracts

Number; Independent Managers. (a) The number of Managers comprising the Board will not be less than three nor more than five. The exact number of Managers will be determined by the Member, subject to Section 4.03(b). The current Board consists of five Managers, two of whom are Independent Managers, and who are: Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxx Xxxxxxx (b) The Board will include at least two Independent Managers, and no action requiring the unanimous affirmative vote of the Managers may be taken unless at least two Independent Managers approve such action. Except as provided in Section 4.03(c), any action permitted or required to be taken by the Board may be taken by a simple majority the Board. When voting on matters subject to the vote of the Board, including those matters specified in Section 4.03(c), notwithstanding that the Company is not then insolvent, each Manager, including each Independent Manager, will, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company and its creditors and will take into account the interests of the Member and, as long as any Securities rated by a Rating Agency are acquired or sold by the Company and remain outstanding, the holders of such Securities. For purposes of this subsection, the following terms have the meanings set forth below: (i) A “significant customer of MBFS USA or any of its Affiliates” means a customer from which MBFS USA and any of its Affiliates collectively in the last fiscal year of MBFS USA received payments in consideration for the products and services of MBFS USA and its Affiliates which are in excess of 1% of the consolidated gross revenues of MBFS USA and its Affiliates during such fiscal year. (ii) A “significant supplier of MBFS USA or any of its Affiliates” means a supplier to which MBFS USA and any of its Affiliates collectively in the last fiscal year of MBFS USA made payments in consideration for the supplier’s products and services in excess of 3% of the consolidated gross revenues of MBFS USA and its Affiliates during such fiscal year. (iii) MBFS USA or any of its Affiliates will be deemed a “significant customer” of a company if MBFS USA and any of its Affiliates collectively were the direct source during such company’s last fiscal year in excess of 3% of the gross revenues which such company received from the sale of its products and services during such fiscal year. (iv) MBFS USA or any of its Affiliates will be deemed a “significant supplier” of a company if MBFS USA and any of its Affiliates collectively received in such company’s fiscal year payments from such company in excess of 3% of the gross revenues which such company received during such fiscal year for the sale of its products and services. (v) A Person will be deemed to have “significant personal services contract(s) with MBFS USA or any of its Affiliates” if the fees and other compensation received by the person pursuant to personal services contract(s) with MBFS USA and any of its Affiliates exceeded or would exceed 3% of his or her gross revenues during the last calendar year. (vi) A tax-exempt entity will be deemed to receive “significant contributions from MBFS USA or any of its Affiliates” if such tax exempt entity received during its last fiscal year, or expects to receive during its current fiscal year, contributions from MBFS USA or its Affiliates in excess of the lesser of (i) 3% of the consolidated gross revenues of MBFS USA and its Affiliates during such fiscal year and (ii) 1% of the contributions received by the tax exempt entity during such fiscal year. (vii) A Person will be deemed to be a “major creditor of MBFS USA or any of its Affiliates” if it is a financial institution which MBFS USA or such Affiliate owes outstanding indebtedness for borrowed money in a sum exceeding more than 5% of MBFS USA’s total consolidated assets. (c) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Holders, the Board or any Person on behalf of the Company, none of the Member, the Holders, the Board or any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the unanimous consent of the Board (including two Independent Managers), do any of the following: (i) amend Section 2.04 to permit the Company to engage in any activity other than those set forth in such Section prior to any such amendment; (ii) engage in any activity other than those set forth in Section 2.04; (iii) amend this subsection (c) or any of Sections 2.08, 2.10, 2.11, 2.12, 2.13, 4.03(b), 7.01, 7.02 or 7.09 or the definition of any terms used in such Sections; (iv) incur any indebtedness, or assume or guaranty any indebtedness of any other Person, other than (A) indebtedness incurred to MBFS USA or any Affiliate of the Company in connection with the acquisition and disposition of Securities from time to time and the Permitted Transactions, which indebtedness will be subordinate to any Securities and will only be payable to the extent the Company has available cash to pay such indebtedness; (B) salaries, fees and expenses to its trustees, professional advisors and counsel, Managers, officers and employees; (C) indebtedness where the Person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other Person in instituting against, the Company any bankruptcy, reorganization, moratorium, receivership, conservatorship, insolvency or liquidation proceeding, or other proceeding under any insolvency law, for one year and one day after all Securities are paid in full, or look to property or assets of the Company in respect of such obligations and that such obligations will not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations; and (D) other indebtedness not exceeding $25,000 at any one time outstanding, on account of incidentals or services supplied or furnished to the Company; (v) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part, consolidate or merge with or into any other Person, convey or transfer its properties and assets substantially as an entirety to any other Person or enter into, or become subject to, a division (including a Delaware LLC Division); (vi) take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Managers then serving in such capacity; or (vii) amend this Agreement or take action, in each case in furtherance of any action described in clauses (i) through (vi) above.

Number; Independent Managers. (a) The number of Managers comprising the Board will not be less than three nor more than five. The exact number of Managers will be determined by the Member, subject to Section 4.03(b). The current initial Board consists will consist of five Managers, two of whom are will be Independent Managers, and who arewill be: Xxxxx Xxxx Xxxxxxx X. Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx X. Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxx XxxxxxxX. Xxxxxx (b) The Board will include at least two Independent Managers, and no action requiring the unanimous affirmative vote of the Managers may be taken unless at least two Independent Managers approve such action. Except as provided in Section 4.03(c), any action permitted or required to be taken by the Board may be taken by a simple majority the Board. When voting on matters subject to the vote of the Board, including those matters specified in Section 4.03(c), notwithstanding that the Company is not then insolvent, each Manager, including each Independent Manager, will, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company and its creditors and will take into account the interests of the Member and, as long as any Securities rated by a Rating Agency are acquired or sold by the Company and remain outstanding, the holders of such Securities. For purposes of this subsection, the following terms have the meanings set forth below: (i) A “significant customer of MBFS DCFS USA or any of its Affiliates” means a customer from which MBFS DCFS USA and any of its Affiliates collectively in the last fiscal year of MBFS DCFS USA received payments in consideration for the products and services of MBFS DCFS USA and its Affiliates which are in excess of 1% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year. (ii) A “significant supplier of MBFS DCFS USA or any of its Affiliates” means a supplier to which MBFS DCFS USA and any of its Affiliates collectively in the last fiscal year of MBFS DCFS USA made payments in consideration for the supplier’s products and services in excess of 3% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year. (iii) MBFS DCFS USA or any of its Affiliates will be deemed a “significant customer” of a company if MBFS DCFS USA and any of its Affiliates collectively were the direct source during such company’s last fiscal year in excess of 3% of the gross revenues which such company received from the sale of its products and services during such fiscal year. (iv) MBFS DCFS USA or any of its Affiliates will be deemed a “significant supplier” of a company if MBFS DCFS USA and any of its Affiliates collectively received in such company’s fiscal year payments from such company in excess of 3% of the gross revenues which such company received during such fiscal year for the sale of its products and services. (v) A Person will be deemed to have “significant personal services contract(s) with MBFS DCFS USA or any of its Affiliates” if the fees and other compensation received by the person pursuant to personal services contract(s) with MBFS DCFS USA and any of its Affiliates exceeded or would exceed 3% of his or her gross revenues during the last calendar year. (vi) A tax-exempt entity will be deemed to receive “significant contributions from MBFS DCFS USA or any of its Affiliates” if such tax exempt entity received during its last fiscal year, or expects to receive during its current fiscal year, contributions from MBFS DCFS USA or its Affiliates in excess of the lesser of (i) 3% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year and (ii) 1% of the contributions received by the tax exempt entity during such fiscal year. (vii) A Person will be deemed to be a “major creditor of MBFS DCFS USA or any of its Affiliates” if it is a financial institution which MBFS DCFS USA or such Affiliate owes outstanding indebtedness for borrowed money in a sum exceeding more than 5% of MBFS DCFS USA’s total consolidated assets. (c) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Holders, the Board or any Person on behalf of the Company, none of the Member, the Holders, the Board or any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the unanimous consent of the Board (including two Independent Managers), do any of the following: (i) amend Section 2.04 to permit the Company to engage in any activity other than those set forth in such Section prior to any such amendment; (ii) engage in any activity other than those set forth in Section 2.04; (iii) amend this subsection (c) or any of Sections 2.08, 2.10, 2.11, 2.12, 2.13, 4.03(b), 7.01, 7.02 or 7.09 or the definition of any terms used in such Sections; (iv) incur any indebtedness, or assume or guaranty any indebtedness of any other Person, other than (A) indebtedness incurred to MBFS DCFS USA or any Affiliate of the Company in connection with the acquisition and disposition of Securities from time to time and the Permitted Transactions, which indebtedness will be subordinate to any Securities and will only be payable to the extent the Company has available cash to pay such indebtedness; (B) salaries, fees and expenses to its trustees, professional advisors and counsel, Managers, officers and employees; (C) indebtedness where the Person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other Person in instituting against, the Company any bankruptcy, reorganization, moratorium, receivership, conservatorship, insolvency or liquidation proceeding, or other proceeding under any insolvency law, for one year and one day after all Securities are paid in full, or look to property or assets of the Company in respect of such obligations and that such obligations will not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations; and (D) other indebtedness not exceeding $25,000 5,000 at any one time outstanding, on account of incidentals or services supplied or furnished to the Company; (v) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part, consolidate or merge with or into any other Person, Person or convey or transfer its properties and assets substantially as an entirety to any other Person or enter into, or become subject to, a division (including a Delaware LLC Division)Person; (vi) take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Managers then serving in such capacity; or (vii) amend this Agreement or take action, in each case in furtherance of any action described in clauses (i) through (vi) above.

Number; Independent Managers. (a) The number of Managers comprising the Board will not be less than three nor more than five. The exact number of Managers will be determined by the Member, subject to Section 4.03(b). The current initial Board consists will consist of five Managers, two of whom are will be Independent Managers, and who arewill be: Xxxxx Xxxx Xxxxxxx X. Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx X. Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxx XxxxxxxX. Xxxxxx (b) The Board will include at least two Independent Managers, and no action requiring the unanimous affirmative vote of the Managers may be taken unless at least two Independent Managers approve such action. Except as provided in Section 4.03(c), any action permitted or required to be taken by the Board may be taken by a simple majority the Board. When voting on matters subject to the vote of the Board, including those matters specified in Section 4.03(c), notwithstanding that the Company is not then insolvent, each Manager, including each Independent Manager, will, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company and its creditors and will take into account the interests of the Member and, as long as any Securities rated by a Rating Agency are acquired or sold by the Company and remain outstanding, the holders of such Securities. For purposes of this subsection, the following terms have the meanings set forth below: (i) A “significant customer of MBFS DCFS USA or any of its Affiliates” means a customer from which MBFS DCFS USA and any of its Affiliates collectively in the last fiscal year of MBFS DCFS USA received payments in consideration for the products and services of MBFS DCFS USA and its Affiliates which are in excess of 1% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year. (ii) A “significant supplier of MBFS DCFS USA or any of its Affiliates” means a supplier to which MBFS DCFS USA and any of its Affiliates collectively in the last fiscal year of MBFS DCFS USA made payments in consideration for the supplier’s products and services in excess of 3% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year. (iii) MBFS DCFS USA or any of its Affiliates will be deemed a “significant customer” of a company if MBFS DCFS USA and any of its Affiliates collectively were the direct source during such company’s last fiscal year in excess of 3% of the gross revenues which such company received from the sale of its products and services during such fiscal year. (iv) MBFS DCFS USA or any of its Affiliates will be deemed a “significant supplier” of a company if MBFS DCFS USA and any of its Affiliates collectively received in such company’s fiscal year payments from such company in excess of 3% of the gross revenues which such company received during such fiscal year for the sale of its products and services. (v) A Person will be deemed to have “significant personal services contract(s) with MBFS DCFS USA or any of its Affiliates” if the fees and other compensation received by the person pursuant to personal services contract(s) with MBFS DCFS USA and any of its Affiliates exceeded or would exceed 3% of his or her gross revenues during the last calendar year. (vi) A tax-exempt entity will be deemed to receive “significant contributions from MBFS DCFS USA or any of its Affiliates” if such tax exempt entity received during its last fiscal year, or expects to receive during its current fiscal year, contributions from MBFS DCFS USA or its Affiliates in excess of the lesser of (i) 3% of the consolidated gross revenues of MBFS DCFS USA and its Affiliates during such fiscal year and (ii) 1% of the contributions received by the tax exempt entity during such fiscal year. (vii) A Person will be deemed to be a “major creditor of MBFS DCFS USA or any of its Affiliates” if it is a financial institution which MBFS DCFS USA or such Affiliate owes outstanding indebtedness for borrowed money in a sum exceeding more than 5% of MBFS DCFS USA’s total consolidated assets. (c) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Holders, the Board or any Person on behalf of the Company, none of the Member, the Holders, the Board or any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the unanimous consent of the Board (including two Independent Managers), do any of the following: (i) amend Section 2.04 to permit the Company to engage in any activity other than those set forth in such Section prior to any such amendment; (ii) engage in any activity other than those set forth in Section 2.04; (iii) amend this subsection (c) or any of Sections 2.08, 2.10, 2.11, 2.12, 2.13, 4.03(b), 7.01, 7.02 or 7.09 or the definition of any terms used in such Sections; (iv) incur any indebtedness, or assume or guaranty any indebtedness of any other Person, other than (A) indebtedness incurred to MBFS USA DCFS USA, the Titling Trust or any Affiliate of the Company in connection with the acquisition and disposition of Securities Certificates or Exchange Notes from time to time and the Permitted Transactions, which indebtedness will be subordinate to any Securities and will only be payable to the extent the Company has available cash to pay such indebtedness; (B) salaries, fees and expenses to its trustees, professional advisors and counsel, Managers, officers and employees; (C) indebtedness where the Person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other Person in instituting against, the Company any bankruptcy, reorganization, moratorium, receivership, conservatorship, insolvency or liquidation proceedingProceeding, or other proceeding Proceeding under any insolvency lawInsolvency Law, for one year and one day after all Securities are paid in full, or look to property or assets of the Company in respect of such obligations and that such obligations will not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations; and (D) other indebtedness not exceeding $25,000 5,000 at any one time outstanding, on account of incidentals or services supplied or furnished to the Company; (v) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part, consolidate or merge with or into any other Person, Person or convey or transfer its properties and assets substantially as an entirety to any other Person or enter into, or become subject to, a division (including a Delaware LLC Division)Person; (vi) take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Managers then serving in such capacity; or (vii) amend this Agreement or take action, in each case in furtherance of any action described in clauses (i) through (vi) above.

Number; Independent Managers. (a) The number of Managers comprising the Board will not be less than three nor more than five. The exact number of Managers will be determined by the Member, subject to Section 4.03(b). The current Board consists of five Managers, two of whom are Independent Managers, and who are: Xxxxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxx X. Xxxxxx Xxxxxxx Xxxxx X. Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxxx XxxxxxxX. Xxxxxx (b) The Board will include at least two Independent Managers, and no action requiring the unanimous affirmative vote of the Managers may be taken unless at least two Independent Managers approve such action. Except as provided in Section 4.03(c), any action permitted or required to be taken by the Board may be taken by a simple majority the Board. When voting on matters subject to the vote of the Board, including those matters specified in Section 4.03(c), notwithstanding that the Company is not then insolvent, each Manager, including each Independent Manager, will, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, owe its primary fiduciary duty to the Company and its creditors and will take into account the interests of the Member and, as long as any Securities rated by a Rating Agency are acquired or sold by the Company and remain outstanding, the holders of such Securities. For purposes of this subsection, the following terms have the meanings set forth below: (i) A “significant customer of MBFS USA DTFS or any of its Affiliates” means a customer from which MBFS USA DTFS and any of its Affiliates collectively in the last fiscal year of MBFS USA DTFS received payments in consideration for the products and services of MBFS USA DTFS and its Affiliates which are in excess of 1% of the consolidated gross revenues of MBFS USA DTFS and its Affiliates during such fiscal year. (ii) A “significant supplier of MBFS USA DTFS or any of its Affiliates” means a supplier to which MBFS USA DTFS and any of its Affiliates collectively in the last fiscal year of MBFS USA DTFS made payments in consideration for the supplier’s products and services in excess of 3% of the consolidated gross revenues of MBFS USA DTFS and its Affiliates during such fiscal year. (iii) MBFS USA DTFS or any of its Affiliates will be deemed a “significant customer” of a company if MBFS USA DTFS and any of its Affiliates collectively were the direct source during such company’s last fiscal year in excess of 3% of the gross revenues which such company received from the sale of its products and services during such fiscal year. (iv) MBFS USA DTFS or any of its Affiliates will be deemed a “significant supplier” of a company if MBFS USA DTFS and any of its Affiliates collectively received in such company’s fiscal year payments from such company in excess of 3% of the gross revenues which such company received during such fiscal year for the sale of its products and services. (v) A Person will be deemed to have “significant personal services contract(s) with MBFS USA DTFS or any of its Affiliates” if the fees and other compensation received by the person pursuant to personal services contract(s) with MBFS USA DTFS and any of its Affiliates exceeded or would exceed 3% of his or her gross revenues during the last calendar year. (vi) A tax-exempt entity will be deemed to receive “significant contributions from MBFS USA DTFS or any of its Affiliates” if such tax exempt entity received during its last fiscal year, or expects to receive during its current fiscal year, contributions from MBFS USA DTFS or its Affiliates in excess of the lesser of (i) 3% of the consolidated gross revenues of MBFS USA DTFS and its Affiliates during such fiscal year and (ii) 1% of the contributions received by the tax exempt entity during such fiscal year. (vii) A Person will be deemed to be a “major creditor of MBFS USA DTFS or any of its Affiliates” if it is a financial institution which MBFS USA DTFS or such Affiliate owes outstanding indebtedness for borrowed money in a sum exceeding more than 5% of MBFS USADTFS’s total consolidated assets. (c) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Holders, the Board or any Person on behalf of the Company, none of the Member, the Holders, the Board or any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the unanimous consent of the Board (including two Independent Managers), do any of the following: (i) amend Section 2.04 to permit the Company to engage in any activity other than those set forth in such Section prior to any such amendment; (ii) engage in any activity other than those set forth in Section 2.04; (iii) amend this subsection (c) or any of Sections 2.08, 2.10, 2.11, 2.12, 2.13, 4.03(b), 7.01, 7.02 or 7.09 or the definition of any terms used in such Sections; (iv) incur any indebtedness, or assume or guaranty any indebtedness of any other Person, other than (A) indebtedness incurred to MBFS USA DTFS or any Affiliate of the Company in connection with the acquisition and disposition of Securities from time to time and the Permitted Transactions, which indebtedness will be subordinate to any Securities and will only be payable to the extent the Company has available cash to pay such indebtedness; (B) salaries, fees and expenses to its trustees, professional advisors and counsel, Managers, officers and employees; (C) indebtedness where the Person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other Person in instituting against, the Company any bankruptcy, reorganization, moratorium, receivership, conservatorship, insolvency or liquidation proceeding, or other proceeding under any insolvency law, for one year and one day after all Securities are paid in full, or look to property or assets of the Company in respect of such obligations and that such obligations will not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations; and (D) other indebtedness not exceeding $25,000 at any one time outstanding, on account of incidentals or services supplied or furnished to the Company; (v) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part, consolidate or merge with or into any other Person, Person or convey or transfer its properties and assets substantially as an entirety to any other Person or enter into, or become subject to, a division (including a Delaware LLC Division)Person; (vi) take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Managers then serving in such capacity; or (vii) amend this Agreement or take action, in each case in furtherance of any action described in clauses (i) through (vi) above.