Common use of Agent Appointment Clause in Contracts

Agent Appointment. (a) Each Investor hereby confirms the appointment of Cap Agent Associates LLC to act as its agent ("Agent") pursuant to the Notes. In such capacity, Agent shall only be obligated to take action and shall act as directed by the Note Requisite Holders (as hereinafter defined); neither Agent nor any of its officers, directors, managers, members, employees or affiliates shall be responsible to Investors for any losses that any of such Investors may incur hereunder. The Agent shall be entitled to conclusively rely on any such direction or consent from the Note Requisite Holders. In addition, the Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by the Investors to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. (b) Each Investor hereby confirms the appointment of Agent to act as its security agent (the "Security Agent") under the Security Agreement with respect to the Collateral (as defined in the Security Agreement), to take all actions as contemplated in such capacity in the Security Agreement and to be entitled to the benefits of the provisions of the Security Agreement. Each Investor acknowledges that actions by the Security Agent under the Security Agreement shall be authorized by the Note Requisite Holders. (c) Agent may resign as Agent or Security Agent at any time by giving written notice ("Notice") to the Company and the Investors, which resignation shall be effective 30 days from the date of the Notice ("Effective Resignation Date"). Upon the earlier of (i) the Effective Resignation Date or (ii) the appointment of a successor Agent or Security Agent by the Note Requisite Holders, Agent shall have no further obligations hereunder or pursuant to the applicable agreements. In the event a successor Agent is not appointed by the Note Requisite Holders on or before the Effective Resignation Date, then Agent shall have the right to deliver any Collateral held by it with a clerk of a court of competent jurisdiction or a third party escrow provider pending the appointment of a successor Agent by the Note Requisite Holders. (d) For purposes hereof, "Note Requisite Holder(s)" shall mean holders of Notes representing at least 51% of the aggregate amount of principal and accrued interest then outstanding under such Notes.

Agent Appointment. 8.1 The Purchaser hereby authorizes Hxxxxx Asset Partners, LLC, a Delaware limited liability company (a) Each Investor hereby confirms the appointment of Cap Agent Associates LLC “Hxxxxx”), to act as its collateral agent ("the “Agent"”) on behalf of the Purchaser, and in such capacity to enter into the Security Agreement, the Intercreditor Agreement, and to exercise for the benefit of the Purchaser all rights, powers and remedies provided to it, under or pursuant to the Notes. In such capacity, Agent shall only be obligated to take action and shall act as directed by the Note Requisite Holders (as hereinafter defined); neither Agent nor any of its officers, directors, managers, members, employees or affiliates shall be responsible to Investors for any losses that any of such Investors may incur hereunder. The Agent shall be entitled to conclusively rely on any such direction or consent from the Note Requisite Holders. In addition, the Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by the Investors to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. (b) Each Investor hereby confirms the appointment of Agent to act as its security agent (the "Security Agent") under the Security Agreement with respect to and the Collateral Intercreditor Agreement, including, without limitation, those available upon an Event of Default (as defined in the Security AgreementNote), subject always to take all the terms, conditions, limitations and restrictions provided in the Note, the Warrant, the Security Agreement and the Intercreditor Agreement. Except with respect to actions as contemplated to which the Agent is expressly required to act under the terms of the Security Agreement and/or, the Intercreditor Agreement, the Purchaser hereby agrees that the Agent may act or refrain from acting thereunder with the consent, in writing of holders of a majority of the aggregate principal amount of Bridge Notes and the Note outstanding as of the date of such capacity consent (“Requisite Holders”), and that the Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any right or remedy available to the Agent; provided, however, that such direction shall not be in conflict with any rule of law or expose the Agent to personal liability, such direction shall not be unduly prejudicial to the rights of any non-consenting holder, and the Agent may take any action deemed proper by the Agent, in its discretion, that is not inconsistent with such direction or the terms of the Security Agreement and/or the Intercreditor Agreement. The Purchaser agrees that the duties of the Agent are only such as are specifically provided in the Security Agreement and/or the Intercreditor Agreement, and the Agent shall have no other duties, implied or otherwise. The appointment of Hxxxxx as Agent shall be deemed accepted by Hxxxxx, and it shall be and become obligated to the extent provided in the Security Agreement and the Intercreditor Agreement, only upon the execution and delivery of the Security Agreement and the Intercreditor Agreement by Hxxxxx and the other parties to the Security Agreement and the Intercreditor Agreement, respectively. 8.2 The Purchaser agrees that the Agent may consult with counsel of its choice and shall not be responsible or liable for any action taken, suffered or omitted to be entitled taken by it in good faith in accordance with the advice of such counsel (subject to the benefits exceptions set forth in the next two sentences). The Purchaser further agrees that the Agent shall not incur liability for any action or omission to act by it unless the Agent’s conduct constitutes willful misconduct or gross negligence. During the continuance of an Event of Default, the Agent shall be required to use the same degree of care and skill in its exercise of its powers and performance of its duties as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs. 8.3 None of the provisions of the Security this Agreement. Each Investor acknowledges that actions by the Security Agent under , the Security Agreement or the Intercreditor Agreement shall be authorized by construed to require the Note Requisite Holders. Agent to expend or risk its own funds or otherwise to incur any liability (cfinancial or otherwise) Agent may resign as Agent in the performance of any of its duties hereunder or Security Agent at thereunder, or in the exercise of any time by giving written notice ("Notice") to of its rights or powers unless it shall be satisfied that one or both of the Company and/or the Purchaser are at the time obligated and in a financial position to pay the Investors, which resignation Agent’s reasonably anticipated fees for its services and its out-of-pocket expenses (including fees of its counsel) in the performance of such duties or the exercise of any of such rights or powers and to indemnify it against such risk or liability. In no event shall the Agent be effective 30 days from the date of the Notice ("Effective Resignation Date"). Upon the earlier of liable for (i) the Effective Resignation Date any consequential, punitive or special damages or (ii) the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians. The Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder or thereunder by reason of any occurrence beyond the control of the Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility). 8.4 The Purchaser agrees that the Agent shall not be required or bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Agent may execute any of the powers under this Agreement, the Security Agreement or the Intercreditor Agreement or perform any duties hereunder or thereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible or liable for the acts or omissions, including any willful misconduct or gross negligence, on the part of any agent, attorney, custodian or nominee so appointed. 8.5 The Company covenants and agrees, for the benefit of the Purchaser, and as an additional obligation secured under the Security Agreement, to be responsible to pay to the Agent from time to time, and the Agent shall be entitled to, fees and expenses as provided in the Security Agreement. 8.6 The Company agrees, for the benefit of the Purchaser, and as an additional obligation secured under the Security Agreement, to indemnify and hold the Agent and its directors, employees, officers, agents, successors and assigns harmless from and against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and reasonable counsel fees and expenses that may be imposed on the Agent or incurred by it in connection with its acceptance of its appointment as the Agent hereunder or under the Security Agreement or the Intercreditor Agreement or the performance of its duties thereunder, except as a result of the Agent’s gross negligence or willful misconduct. Such indemnity includes, without limitation, all losses, damages, liabilities and expenses (including reasonable counsel fees and expenses) incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement, the Security Agreement or the Intercreditor Agreement or involving the subject matter hereof or thereof. 8.7 The Purchaser agrees that Hxxxxx or any successor may at any time resign as Agent by giving written notice thereof to the Company at least 20 business days prior to the date of such proposed resignation. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Agent or Security Agent collateral agent by the Note Requisite Holders, Agent written instrument executed by authority of its manager a copy of which shall have no further obligations hereunder or pursuant be delivered to the applicable agreementsresigning Agent and a copy to the successor collateral agent. In the event If an instrument of acceptance by a successor collateral agent shall not have been delivered to the Agent is not appointed by within 20 business days after giving such notice of resignation, the Note Requisite Holders on or before the Effective Resignation Date, then resigning Agent shall have the right to deliver may petition any Collateral held by it with a clerk of a court of competent jurisdiction or a third party escrow provider pending for the appointment of a successor collateral agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor collateral agent. The Agent may be removed at any time by the Note written action by Requisite Holders, delivered to the Agent and to the Company. If the Agent shall be so removed, the Company shall promptly appoint a successor collateral agent in accordance with the procedures set forth in this Section 8.7. (d) For purposes hereof, "Note Requisite Holder(s)" shall mean holders of Notes representing at least 51% of the aggregate amount of principal and accrued interest then outstanding under such Notes.

Agent Appointment. (a) Each Investor hereby confirms At the appointment of Cap Agent Associates LLC to act Closing, the Note Requisite Holders (as hereinafter defined and for these purposes, as existing on such date) may at its sole discretion appoint an agent ("Agent") pursuant to the Notes. In such capacity, Agent shall only be obligated to take action and shall act as directed by the Note Requisite Holders (as hereinafter defined)Holders; neither Agent nor any of its officers, directors, managers, members, employees or affiliates shall be responsible to Investors for any losses that any of such Investors may incur hereunder. The Agent shall be entitled to conclusively rely on any such direction or consent from the Note Requisite Holders. In addition, the Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by the Investors to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. (b) 3.7.1. Each Investor hereby confirms the appointment of that Agent to if appointed shall act as its security agent (the "Security Agent") under the Security Agreement with respect to the Collateral (as defined in the Security Agreement), to take all actions as contemplated in such capacity in the Security Agreement and to be entitled to the benefits of the provisions of the Security Agreement. Each Investor acknowledges that actions by the Security Agent under the Security Agreement shall be authorized by the Note Requisite Holders. (c) 3.7.2. Agent may resign as Agent or Security Agent at any time by giving written notice ("Notice") to the Company and the Investors, which resignation shall be effective 30 days from the date of the Notice ("Effective Resignation Date"). Upon the earlier of (i) the Effective Resignation Date or (ii) the appointment of a successor Agent or Security Agent by the Note Requisite Holders, Agent shall have no further obligations hereunder or pursuant to the applicable agreements. In the event a successor Agent is not appointed by the Note Requisite Holders on or before the Effective Resignation Date, then Agent shall have the right to deliver any Collateral held by it with a clerk of a court of competent jurisdiction or a third party escrow provider pending the appointment of a successor Agent by the Note Requisite Holders. (d) 3.7.3. For purposes hereof, "Note Requisite Holder(s)" shall mean holders of Notes representing at least 51% of the aggregate amount of principal and accrued interest then outstanding under such Notes. 3.7.4. Agent's capacity as Agent and Security Agent, the Company and the Investors each agree to indemnify and hold the Agent harmless from and against any and all expenses (including counsel fees), liabilities, claims, damages, actions, suits or other charges incurred by or assessed against the Agent for anything done or omitted by them in the performance of their duties, except upon final judicial determination of gross negligence or willful misconduct on the part of the Agent.

Agent Appointment. 8.1 The Purchaser hereby authorizes Xxxxxx Asset Partners, LLC, a Delaware limited liability company (a) Each Investor hereby confirms the appointment of Cap Agent Associates LLC "Xxxxxx"), to act as its collateral agent (the "Agent") on behalf of the Purchaser, and in such capacity to enter into the Security Agreement, the Intercreditor Agreement, and to exercise for the benefit of the Purchaser all rights, powers and remedies provided to it, under or pursuant to the Notes. In such capacity, Agent shall only be obligated to take action and shall act as directed by the Note Requisite Holders (as hereinafter defined); neither Agent nor any of its officers, directors, managers, members, employees or affiliates shall be responsible to Investors for any losses that any of such Investors may incur hereunder. The Agent shall be entitled to conclusively rely on any such direction or consent from the Note Requisite Holders. In addition, the Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by the Investors to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. (b) Each Investor hereby confirms the appointment of Agent to act as its security agent (the "Security Agent") under the Security Agreement with respect to and the Collateral Intercreditor Agreement, including, without limitation, those available upon an Event of Default (as defined in the Security AgreementNote), subject always to take all the terms, conditions, limitations and restrictions provided in the Note, the Warrant, the Security Agreement and the Intercreditor Agreement. Except with respect to actions as contemplated to which the Agent is expressly required to act under the terns of the Security Agreement and/or, the Intercreditor Agreement, the Purchaser hereby agrees that the Agent may act or refrain from acting thereunder with the consent, in writing of holders of a majority of the aggregate principal amount of Bridge Notes and the Note outstanding as of the date of such capacity consent ("Requisite Holders"), and that the Requisite Holders shall have the right to direct the time, method and place of conducting any proceeding for any right or remedy available to the Agent; provided, however, that such direction shall not be in conflict with any rule of law or expose the Agent to personal liability, such direction shall not be unduly prejudicial to the rights of any non-consenting holder, and the Agent may take any action deemed proper by the Agent, in its discretion, that is not inconsistent with such direction or the terms of the Security Agreement and/or the Intercreditor Agreement. The Purchaser agrees that the duties of the Agent are only such as are specifically provided in the Security Agreement and/or the Intercreditor Agreement, and the Agent shall have no other duties, implied or otherwise. The appointment of Xxxxxx as Agent shall be deemed accepted by Xxxxxx, and it shall be and become obligated to the extent provided in the Security Agreement and the Intercreditor Agreement, only upon the execution and delivery of the Security Agreement and the Intercreditor Agreement by Xxxxxx and the other parties to the Security Agreement and the Intercreditor Agreement, respectively. 8.2 The Purchaser agrees that the Agent may consult with counsel of its choice and shall not be responsible or liable for any action taken, suffered or omitted to be entitled taken by it in good faith in accordance with the advice of such counsel (subject to the benefits exceptions set forth in the next two sentences). The Purchaser further agrees that the Agent shall not incur liability for any action or omission to act by it unless the Agent's conduct constitutes willful misconduct or gross negligence. During the continuance of an Event of Default, the Agent shall be required to use the same degree of care and skill in its exercise of its powers and performance of its duties as a prudent person would exercise under the circumstances in the conduct of such person's own affairs. 8.3 None of the provisions of the Security this Agreement. Each Investor acknowledges that actions by the Security Agent under , the Security Agreement or the Intercreditor Agreement shall be authorized by construed to require the Note Requisite Holders. Agent to expend or risk its own funds or otherwise to incur any liability (cfinancial or otherwise) Agent may resign as Agent in the performance of any of its duties hereunder or Security Agent at thereunder, or in the exercise of any time by giving written notice ("Notice") to of its rights or powers unless it shall be satisfied that one or both of the Company and/or the Purchaser are at the time obligated and in a financial position to pay the Investors, which resignation Agent's reasonably anticipated fees for its services and its out-of pocket expenses (including fees of its counsel) in the performance of such duties or the exercise of any of such rights or powers and to indemnify it against such risk or liability. In no event shall the Agent be effective 30 days from the date of the Notice ("Effective Resignation Date"). Upon the earlier of liable for (i) the Effective Resignation Date any consequential, punitive or special damages or (ii) the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians. The Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder or thereunder by reason of any occurrence beyond the control of the Agent (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility). 8.4 The Purchaser agrees that the Agent shall not be required or bound to make any investigation into the facts or matters stated in any resolution certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Agent may execute any of the powers under this Agreement, the Security Agreement or the Intercreditor Agreement or perform any duties hereunder or thereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible or liable for the acts or omissions, including any willful misconduct or gross negligence, on the part of any agent, attorney, custodian or nominee so appointed. 8.5 The Company covenants and agrees for the benefit of the Purchaser, and as an additional obligation secured under the Security Agreement, to be responsible to pay to the Agent from time to time, and the Agent shall be entitled to, fees and expenses as provided in the Security Agreement. 8.6 The Company agrees, for the benefit of the Purchaser, and as an additional obligation secured under the Security Agreement, to indemnify and hold the Agent and its directors, employees, officers, agents, successors and assigns harmless from and against any and all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable costs of investigation and reasonable counsel fees and expenses that may be imposed on the Agent or incurred by it in connection with its acceptance of its appointment as the Agent hereunder or under the Security Agreement or the Intercreditor Agreement or the performance of its duties thereunder, except as a result of the Agent' s gross negligence or willful misconduct. Such indemnity includes, without limitation, all losses, damages, liabilities and expenses (including reasonable counsel fees and expenses) incurred in connection with any litigation (whether at the trial or appellate levels) arising from this Agreement, the Security Agreement or the Intercreditor Agreement or involving the subject matter hereof or thereof. 8.7 The Purchaser agrees that Xxxxxx or any successor may at any time resign as Agent by giving written notice thereof to the Company at least 20 business days prior to the date of such proposed resignation. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Agent or Security Agent collateral agent by the Note Requisite Holders, Agent written instrument executed by authority of its manager a copy of which shall have no further obligations hereunder or pursuant be delivered to the applicable agreementsresigning Agent and a copy to the successor collateral agent. In the event If an instrument of acceptance by a successor collateral agent shall not have been delivered to the Agent is not appointed by within 20 business days after giving such notice of resignation, the Note Requisite Holders on or before the Effective Resignation Date, then resigning Agent shall have the right to deliver may petition any Collateral held by it with a clerk of a court of competent jurisdiction or a third party escrow provider pending for the appointment of a successor collateral agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor collateral agent. The Agent may be removed at any time by the Note written action by Requisite Holders. (d) For purposes hereof, "Note Requisite Holder(s)" delivered to the Agent and to the Company. If the Agent shall mean holders of Notes representing at least 51% of be so removed, the aggregate amount of principal and accrued interest then outstanding under such Notes.Company shall promptly appoint a successor collateral agent in accordance with the procedures set forth in this Section 8.7. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

Agent Appointment. (a) Each Investor hereby confirms the appointment of Cap Agent Associates Ocean Drive Holdings LLC to act as its agent ("Agent") pursuant to the Notes. In such capacity, Agent shall only be obligated to take action and shall act as directed by the Note Requisite Holders (as hereinafter defined); neither Agent nor any of its officers, directors, managers, members, employees or affiliates shall be responsible to Investors for any losses that any of such Investors may incur hereunder. The Agent shall be entitled to conclusively rely on any such direction or consent from the Note Requisite Holders. In addition, the Agent may act in reliance upon any signature believed by it to be genuine, and may assume that any person who has been designated by the Investors to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. (b) Each Investor hereby confirms the appointment of Agent to act as its security agent (the "Security Agent") under the Security Agreement with respect to the Collateral (as defined in the Security Agreement), to take all actions as contemplated in such capacity in the Security Agreement and to be entitled to the benefits of the provisions of the Security Agreement. Each Investor acknowledges that actions by the Security Agent under the Security Agreement shall be authorized by the Note Requisite Holders. (c) Agent may resign as Agent or Security Agent at any time by giving written notice ("Notice") to the Company and the Investors, which resignation shall be effective 30 days from the date of the Notice ("Effective Resignation Date"). Upon the earlier of (i) the Effective Resignation Date or (ii) the appointment of a successor Agent or Security Agent by the Note Requisite Holders, Agent shall have no further obligations hereunder or pursuant to the applicable agreements. In the event a successor Agent is not appointed by the Note Requisite Holders on or before the Effective Resignation Date, then Agent shall have the right to deliver any Collateral held by it with a clerk of a court of competent jurisdiction or a third party escrow provider pending the appointment of a successor Agent by the Note Requisite Holders. (d) For purposes hereof, "Note Requisite Holder(s)" shall mean holders of Notes representing at least 51% of the aggregate amount of principal and accrued interest then outstanding under such Notes.