Presumption of Assent A Director present at a meeting shall be presumed to have assented to action taken, unless the dissent of such Director is entered in the minutes of the meeting or unless such Director files a written dissent to such action with the other Directors before the adjournment thereof or forwards such dissent by mail to the other Directors immediately after the adjournment thereof. Such right to dissent shall not apply to a Director who voted in favor of an action.
Condition of Assets 4 2.10 TITLE TO AND ENCUMBRANCES ON PROPERTY . . . . . . . . . . . . . . . . . . 4 2.11 INVENTORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.12 INTELLECTUAL PROPERTY RIGHTS; NAMES . . . . . . . . . . . . . . . . . . .
VALUATION OF ASSETS For all purposes of this Agreement, including, without limitation, the determination of the Net Asset Value per Unit of each Class, the assets of this FuturesAccess Fund shall be valued according to the following principles:
(a) The Net Assets of this FuturesAccess Fund are its assets less its liabilities determined in accordance with generally accepted accounting principles and as described below. Accrued Performance Fees (as described in the Disclosure Document) shall reduce Net Asset Value, even though such Performance Fees may never, in fact, be paid.
(b) For the avoidance of doubt, the Sponsor shall, in general, apply the following principles in valuing this FuturesAccess Fund’s assets:
(i) commodity interests and currency interests which are traded on a United States exchange shall be valued at their settlement on the date as of which the values are being determined;
(ii) commodity interests and currency interests not traded on a United States exchange shall be valued based upon policies established by the Sponsor, generally based on prices as reported by any reliable source selected by the Sponsor, consistently applied for each variety of interest;
(iii) swap agreements shall be valued in the good faith discretion of the Sponsor based on quotations received from dealers deemed appropriate by the Sponsor;
(iv) bank and other interest-bearing accounts, Treasury bills and other short-term, interest-bearing instruments shall be valued at cost plus accrued interest;
(v) securities which are traded on a national securities exchange shall be valued at their closing price on the date as of which their value is being determined on the national securities exchange on which such securities are principally traded or on a consolidated tape which includes such exchange, whichever shall be selected by the Sponsor, or, if there is no closing price on such date on such exchange or consolidated tape, at the prior day’s closing price;
(vi) securities not traded on a national securities exchange but traded over-the-counter shall be valued based on prices as reported by any reliable source selected by the Sponsor;
(vii) money-market funds shall be valued at their net asset value on the date as of which their value is being determined;
(viii) if on the date as of which any valuation is being made, the exchange or market herein designated for the valuation of any given assets is not open for business, the basis for valuing such assets shall be such value as the Sponsor may deem fair and reasonable; Aspect FuturesAccess LLC
Acquisition of Assets In the event the Company or any Subsidiary acquires any assets or other properties, such assets or properties shall constitute a part of the Collateral (as defined in the Security Agreement) and the Company shall take all action necessary to perfect the Purchasers’ security interest in such assets or properties pursuant to the Security Agreement.
Description of Assets Upon the terms and subject to the conditions set forth in this Agreement, Seller does hereby grant, convey, sell, transfer and assign to Buyer the following assets, properties and contractual rights of Seller, wherever located, subject to the exclusions hereinafter set forth:
(a) all equipment used or for use in the operation of the Business, including, without limitation, the equipment listed on Schedule 1.1(a) attached hereto and made a part hereof (the "Equipment");
(b) all of the motor vehicles used or for use in the Business, and all radios, attachments, accessories and materials handling equipment now located in or on such motor vehicles (the "Rolling Stock"), as the same are listed and more completely described by manufacturer, model number and model year on Schedule 1.1(b), attached hereto and made a part hereof;
(c) all manual and automated routing and billing information and components thereof;
(d) all contractual rights of Seller with Seller's customers (whether oral or in writing) relating to the conduct of the Business (the "Customer Accounts"), and all commitments, lists, leases, permits, licenses, consents, approvals, franchises and other instruments relating to the Customer Accounts (the "Related Approvals"); a complete and accurate list of the Customer Accounts and the Related Approvals is set forth on Schedule 1.1(d), attached hereto and made a part hereof, and true and complete copies of all Customer Accounts and Related Approvals shall be delivered to Buyer simultaneously with the execution and delivery of this Agreement;
(e) all of Seller's inventory of parts, tires and accessories of every kind, nature and description used or for use in connection with the Business (the "Inventory");
(f) all right, title and interest of Seller in and to all trade secrets, proprietary rights, symbols, trademarks, service marks, logos and trade names used in the Business;
(g) all permits, licenses, franchises, consents and other approvals relating to the Business set forth on Schedule 1.1(g), attached hereto and made a part hereof (the "Permits"), true and complete copies of which are attached to Schedule 1.1(g);
(h) Seller's leasehold interest in the Land;
(i) all of Seller's right, title and interest in and to the name "Suburban Wastewater Services Inc." and the right to use such name (the "Business Name");
(j) all of Seller's existing documents, files and other material related to all current or past customers of the Business;
(k) all of Seller's shop tools, nuts and bolts relating to the Business; and
(l) all of the goodwill of the Business. All of the foregoing assets, properties and contractual rights are hereinafter sometimes collectively called the "Assets."
Notice of Asserted Liability Promptly after receipt by any party hereto (the "Indemnitee") of notice of any demand, claim or circumstances which, with the lapse of time, would or might give rise to a claim or the commencement (or threatened commencement) of any action, proceeding or investigation (an "Asserted Liability") that may result in a Loss, the Indemnitee shall give notice thereof (the "Claims Notice") to any other party (or parties) obligated to provide indemnification pursuant to Section 9.01 or 9.02 (the "Indemnifying Party"). The Claims Notice shall describe the Asserted Liability in reasonable detail, and shall indicate the amount (estimated, if necessary and to the extent feasible) of the Loss that has been or may be suffered by the Indemnitee.
Assumption of Assumed Liabilities Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser shall (i) assume and, subject to Section 2.5, Section 6.5, Section 6.6 and Article VII, pay, perform, satisfy and discharge any and all Liabilities of the Sellers or any of their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries), whether arising prior to, on or after the Closing, to the extent resulting from or arising out of the past, present or future ownership, operation, use or conduct of the Business or the Purchased Assets (including the Shares) and (ii) cause the Conveyed Subsidiaries and their Subsidiaries to pay, perform, satisfy and discharge any and all of their respective Liabilities, in each case of the foregoing clauses (i) and (ii), other than Liabilities identified as Retained Liabilities in clauses (a) through (g) of Section 2.5 (all of the foregoing Liabilities being collectively referred to herein as the “Assumed Liabilities”). The Assumed Liabilities shall also include the following:
(a) all Liabilities to the extent expressly assumed by, retained by or agreed to be performed by Purchaser or its Subsidiaries (including the Conveyed Subsidiaries and their Subsidiaries) pursuant to the terms of this Agreement, including all Liabilities to the extent transferred to or assumed or retained by Purchaser or its Subsidiaries pursuant to Section 6.6 and Section 6.13;
(b) all Liabilities in respect of any Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently threatened, asserted or pending, to the extent arising out of, or to the extent relating to, the Business or the operation or conduct of the Business prior to, on or after the Closing;
(c) all Liabilities for Taxes of the Conveyed Subsidiaries and their Subsidiaries and, without duplication, all other Liabilities for Taxes imposed with respect to, arising out of or relating to the Purchased Assets or the Business, in each case, other than Seller Indemnified Taxes for which Seller Parent is liable pursuant to this Agreement;
(d) all Liabilities to the extent arising out of, or to the extent relating to, the design, manufacture, testing, marketing, distribution, use or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
(e) all Liabilities to suppliers and customers, in each case to the extent arising out of, or to the extent relating to, the Business, including in respect of any Products returned prior to, on or after the Closing;
(f) all accounts payable and all other Liabilities, in each case included in the calculation of Final Business Working Capital, all Funded Indebtedness included in the calculation of Final Business Net Cash and all other Indebtedness of the Conveyed Subsidiaries (or their Subsidiaries) that is not Funded Indebtedness;
(g) all Environmental Liabilities of any nature whatsoever to the extent arising out of, or relating to, or in respect of the Conveyed Subsidiaries (or their Subsidiaries), the Purchased Assets, the Business or the Facilities, whether arising prior to, on or after the Closing, other than the Retained Facilities Environmental Liabilities or the Retained Environmental Liabilities;
(h) all Liabilities to the extent relating to, resulting from or arising out of the Assumed Contracts, including Purchaser’s or its Affiliates’ (including any Conveyed Subsidiary’s or its Subsidiaries’) portion of Shared Contractual Liabilities pursuant to Section 2.2(d); and
(i) the Liabilities set forth in Section 2.4(i) of the Seller Disclosure Letter.
REVERSION OF ASSETS (a) Upon expiration of the term of this Agreement, or upon any prior termination, Subrecipient shall transfer to City any funds provided hereunder which are on hand at the time of expiration or termination.
(b) In the event City incurs any costs or expenses in enforcing the requirements of this paragraph 15 or in bringing any action to recover the property or amount of any repayment obligation, City shall be entitled to recover its costs and expenses, including reasonable attorney’s fees.
Recognition of Assignee (a) From and after the date hereof, the Servicer shall note the transfer of the Mortgage Loans to the Assignee in its books and records, shall recognize the Assignee as the owner of the Mortgage Loans and shall, subject to subsection (b) below, service the Mortgage Loans for the benefit of the Assignee pursuant to the Servicing Agreement, the terms of which are incorporated herein by reference. The Servicer shall establish a separate Custodial Account for collections on the Mortgage Loans, and such Custodial Account shall be entitled “M&T Mortgage Corporation, as servicer in trust for [Trustee]”. It is the intention of the Assignor, Servicer and Assignee that the Servicing Agreement shall be binding upon and inure to the benefit of the Servicer and the Assignee and their successors and assigns.
(b) The Servicer further acknowledges that, from and after the date hereof, it (and any of its successors under the Servicing Agreement) will be subject to the supervision of the Master Servicer (except that the Master Servicer shall not be responsible for supervising the servicing of defaulted Mortgage Loans and REO Properties) and that the Master Servicer, acting on behalf of the Trustee as the owner of the Mortgage Loans, shall have the same rights as were assigned by the Assignor, in its capacity as the original owner under the Servicing Agreement, to the Depositor under the Bayview Assignment Agreement, and further assigned by the Depositor to the Trustee, on behalf of the Trust, hereunder. Such rights will include, without limitation, the right to terminate the Servicer under the Servicing Agreement upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Servicing Agreement, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Servicing Agreement, indemnification rights, the right to inspect the Servicer’s books and records and the right to exercise certain rights of consent and approval relating to actions taken by the Servicer.
(c) All reports, notices and other written information required to be delivered to the Trustee, as the successor in interest to Bayview and the Assignor under the Servicing Agreement, shall also be delivered to the Master Servicer at the address set forth in Section 9 hereof. All remittances required to be made to the Trustee, as the successor in interest to Bayview and the Assignor under the Servicing Agreement, shall be made instead to the Master Servicer by wire transfer to the following account: ___________________ ABA# For credit to: Account Number: For further credit to: Collection Acct#
Disposition of Assets No Loan Party shall, and no Loan Party shall suffer or permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Property (including the Stock of any Subsidiary of any Loan Party, whether in a public or a private offering or otherwise, and accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing (except subject to compliance with, or termination of, this Agreement), except:
(a) dispositions of inventory, or used, worn-out or surplus equipment or defaulted receivables for collection, all in the Ordinary Course of Business;
(b) dispositions not otherwise permitted hereunder which are made for fair market value (excluding Accounts, Inventory and notes receivable); provided, that (i) at the time of any disposition, no Event of Default shall exist or shall result from such disposition, (ii) not less than 75% of the aggregate sales price from such disposition shall be paid in cash, (iii) such dispositions are made for fair market value, (iv) the requirements of Section 2.05(b)(ii), to the extent applicable, are complied with in connection therewith, provided that, all Net Cash Proceeds received from dispositions in any Fiscal Year under this clause (b) in an aggregate amount in excess of $7,500,000 per annum shall be paid in accordance with Section 2.03(b) of the Term Credit Agreement or, if applicable, Second Lien Credit Agreement, and (v) after giving effect to such disposition, the Loan Parties are in compliance on a pro forma basis with the covenant set forth in Section 7.19, recomputed for the most recent Fiscal Quarter for which financial statements have been delivered;
(c) dispositions of Cash Equivalents;
(d) licenses, sublicenses, leases or subleases granted to third parties in the Ordinary Course of Business not interfering with the business of the Loan Parties or any of their Subsidiaries;
(e) dispositions constituting an Investment or Restricted Payment permitted under this Agreement;
(f) dispositions in connection with an Event of Loss; provided that the requirements of Section 2.05(b) and Section 2.03(b) of the Term Credit Agreement are complied with in connection therewith;
(g) dispositions of the assets of any Non-Material Subsidiary;
(h) sale-leasebacks of real estate, machinery and equipment with a value not to exceed $10,000,000 in the aggregate;
(i) termination of a lease that is not reasonably likely to result in a Material Adverse Effect and does not result from a default by a Loan Party; and
(j) any disposition described in the Structure Memorandum.
