Common use of Appointment, Authorization and Action Clause in Contracts

Appointment, Authorization and Action. (a) The Borrower and the Administrative Agent on behalf of the Secured Parties hereby (i) appoint MSSFI, and MSSFI hereby agrees to act, as the Depositary Agent and (ii) authorize the Depositary Agent to take such action as agent and to exercise such powers and discretion under this Agreement as are delegated to the Depositary Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto, with such powers as are expressly delegated to the Depositary Agent by the terms of this Agreement. As to any matters not expressly provided for by this Agreement (including enforcement of collection of the obligations of the Loan Parties), the Depositary Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Administrative Agent, and such instructions shall be binding upon all of the Secured Parties; provided, however, that the Depositary Agent shall not be required to take any action that exposes the Depositary Agent to personal liability or that is contrary to this Agreement or applicable law. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Administrative Agent shall direct it to perform in accordance with the express provisions of this Agreement. All notices, instructions or requests to the Depositary Agent shall be in writing. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Agreement. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party contained in this Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Loan Party to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by the Borrower or any other Loan Party of any of its obligations under this Agreement, any other Loan Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (A) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Security Document or (B) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction). Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible Officer of the Borrower or a certificate of an officer of the Administrative Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Administrative Agent, the Borrower or any other Loan Party. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts.

Appointment, Authorization and Action. (a) The Borrower Subject to the terms and conditions hereof, each Lender hereby irrevocably designates, appoints and authorizes the Administrative Agent as an agent of such Lender and Secured Party under the Loan Documents and the Administrative Agent on behalf of hereby accepts such designation and appointment. Each Lender irrevocably authorizes the Secured Parties hereby Administrative Agent, in such capacity, through its agents or employees to (i) appoint MSSFI, and MSSFI hereby agrees to act, as the Depositary Agent and (ii) authorize the Depositary Agent to take such action as agent on its behalf under the provisions of the Loan Documents and to exercise such powers and discretion under this Agreement perform such duties as are delegated to the Depositary Administrative Agent by the terms hereofhereof and of the other Loan Documents, together with such powers and discretion as are reasonably incidental thereto, (ii) execute any and all documents (including releases) with such powers as are expressly delegated respect to the Depositary Agent Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms provisions of the Loan Documents or otherwise at the direction of the Requisite Lenders, (iii) negotiate, enforce or settle any claim, action or proceeding affecting the Secured Parties in their capacity as such, at the direction of the Requisite Lenders and (iv) negotiate, execute and perform its obligations under the Intercreditor Agreement and the Subordination Agreement. The provisions of this AgreementArticle VIII are solely for the benefit of the Administrative Agent and the Lenders, and no Credit Party shall have rights as a third party beneficiary of any such provisions. As to any matters not expressly provided for by this Agreement or any other Loan Document (including including, without limitation, enforcement of or collection of the obligations of the Loan Partiesany Notes), the Depositary Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Administrative AgentRequisite Lenders, and such instructions shall be binding upon all Lenders and all holders of the Secured PartiesNotes; provided, however, that the Depositary Agent shall not be required to take any action that exposes the Depositary Agent to personal liability or that is contrary to this Agreement or applicable law. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Administrative Agent shall direct it to perform in accordance with the express provisions of this Agreement. All notices, instructions or requests to the Depositary Agent shall be in writing. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party contained in this Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Loan Party to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by the Borrower or any other Loan Party of any of its obligations under this Agreement, any other Loan Document Document, or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (A) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Security Document or (B) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction). Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible Officer of the Borrower or a certificate of an officer of the Administrative Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Administrative Agent, the Borrower or any other Loan Party. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent factsapplicable law.

Appointment, Authorization and Action. (a) The Each of the Borrower and the Administrative Agent (for itself and on behalf of the Secured Parties (other than the Depositary Agent)) hereby (i) appoint MSSFILIBERTY BANK, and MSSFI LIBERTY BANK hereby agrees to act, as the Depositary Agent and (ii) authorize the Depositary Agent to take such action as agent and to exercise such powers and discretion under this Agreement as are expressly delegated to the Depositary Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. The Depositary Agent shall be fully justified in failing or refusing to take any action under this Agreement (x) if such action would, with such powers as are expressly delegated to in the reasonable opinion of the Depositary Agent by Agent, be contrary to applicable law or the terms of this Agreement. As to any matters , or (y) if such action is not expressly specifically provided for by in this Agreement (including enforcement of collection and it shall not have received such advice or concurrence of the obligations of the Loan Parties)Collateral Agent or Administrative Agent, the as applicable, as it deems appropriate. The Depositary Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall in all cases be fully protected in so acting acting, or in refraining from acting) upon , under this Agreement in accordance with a request of the instructions of Collateral Agent or the Administrative Agent, and such instructions request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties; provided, however, that the Depositary Agent shall not be required to take any action that exposes the Depositary Agent to personal liability or that is contrary to this Agreement or applicable law. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent does not have any fiduciary duties or any trust relationship with any Secured Party, any Loan Party or any other Person (and the use of the defined term “Depositary Agent” in this Agreement or any other Financing Document is made for the sake of convenience only and shall not imply any such duty or relationship). The Depositary Agent shall take all actions as the Collateral Agent (acting at the direction of the Administrative Agent) or the Administrative Agent shall direct it to perform in accordance with the express provisions of this Agreement. All notices, instructions or requests to the Depositary Agent shall be in writing and the Depositary Agent shall take action under this Agreement only as it shall be directed in writing. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this AgreementAgreement or applicable law. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party contained in this Agreement or any other Loan Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Financing Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Loan Party to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by the Borrower or any other Loan Party of any of its obligations under this Agreement, any other Loan Financing Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (A) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Security Document or (B) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction). Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible an Authorized Officer of the Borrower or a certificate of an officer of the Collateral Agent or a certificate of an Authorized Officer of the Administrative Agent, if appropriateappropriate or from advice of legal counsel to the Borrower. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, the Administrative Agent, the Borrower or any other Loan Partycourt of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by the final, non-appealable judgment of a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts.

Appointment, Authorization and Action. (a) The Borrower Subject to the terms and conditions hereof, each Lender hereby irrevocably designates, appoints and authorizes the Administrative Agent as an agent of such Lender and Secured Party under the Loan Documents and the Administrative Agent on behalf of hereby accepts such designation and appointment. Each Lender irrevocably authorizes the Secured Parties hereby Administrative Agent, in such capacity, through its agents or employees to (i) appoint MSSFI, and MSSFI hereby agrees to act, as the Depositary Agent and (ii) authorize the Depositary Agent to take such action as agent on its behalf under the provisions of the Loan Documents and to exercise such powers and discretion under this Agreement perform such duties as are delegated to the Depositary Administrative Agent by the terms hereofhereof and of the other Loan Documents, together with such powers and discretion as are reasonably incidental thereto, (ii) execute any and all documents (including releases) with such powers as are expressly delegated respect to the Depositary Agent Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms provisions of the Loan Documents or otherwise at the direction of the Requisite Lenders and (iii) negotiate, enforce or settle any claim, action or proceeding affecting the Secured Parties in their capacity as such, at the direction of the Requisite Lenders. The provisions of this AgreementArticle VIII are solely for the benefit of the Administrative Agent and the Lenders, and no Credit Party shall have rights as a third party beneficiary of any such provisions. As to any matters not expressly provided for by this Agreement or any other Loan Document (including including, without limitation, enforcement of or collection of the obligations of the Loan Partiesany Notes), the Depositary Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Administrative AgentRequisite Lenders, and such instructions shall be binding upon all Lenders and all holders of the Secured PartiesNotes; provided, however, that the Depositary Agent shall not be required to take any action that exposes the Depositary Agent to personal liability or that is contrary to this Agreement or applicable law. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Administrative Agent shall direct it to perform in accordance with the express provisions of this Agreement. All notices, instructions or requests to the Depositary Agent shall be in writing. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party contained in this Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Loan Party to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by the Borrower or any other Loan Party of any of its obligations under this Agreement, any other Loan Document Document, or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (A) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Security Document or (B) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction). Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible Officer of the Borrower or a certificate of an officer of the Administrative Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Administrative Agent, the Borrower or any other Loan Party. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent factsapplicable law.

Appointment, Authorization and Action. (a) The Borrower Subject to the terms and conditions hereof, each Lender hereby irrevocably designates, appoints and authorizes the Administrative Agent as an agent of such Lender and Secured Party under the Loan Documents and the Administrative Agent on behalf of hereby accepts such designation and appointment. Each Lender irrevocably authorizes the Secured Parties hereby Administrative Agent, in such capacity, through its agents or employees to (i) appoint MSSFI, and MSSFI hereby agrees to act, as the Depositary Agent and (ii) authorize the Depositary Agent to take such action as agent on its behalf under the provisions of the Loan Documents and to exercise such powers and discretion under this Agreement perform such duties as are delegated to the Depositary Administrative Agent by the terms hereofhereof and of the other Loan Documents, together with such powers and discretion as are reasonably incidental thereto, (ii) execute any and all documents (including releases) with such powers as are expressly delegated respect to the Depositary Agent Collateral and the rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the terms provisions of the Loan Documents (including without limitation the First Amendment to Pledge Agreement) or otherwise at the direction of the Requisite Lenders, (iii) negotiate, enforce or settle any claim, action or proceeding affecting the Secured Parties in their capacity as such, at the direction of the Requisite Lenders and (iv) perform its obligations under the Intercreditor Agreement. The provisions of this AgreementArticle VIII are solely for the benefit of the Administrative Agent and the Lenders, and no Credit Party shall have rights as a third party beneficiary of any such provisions. As to any matters not expressly provided for by this Agreement or any other Loan Document (including including, without limitation, enforcement of or collection of the obligations of the Loan Partiesany Notes), the Depositary Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Administrative AgentRequisite Lenders, and such instructions shall be binding upon all Lenders and all holders of the Secured PartiesNotes; provided, however, that the Depositary Agent shall not be required to take any action that exposes the Depositary Agent to personal liability or that is contrary to this Agreement or applicable law. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Administrative Agent shall direct it to perform in accordance with the express provisions of this Agreement. All notices, instructions or requests to the Depositary Agent shall be in writing. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Borrower or any other Loan Party contained in this Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any other document referred to or provided for herein or therein or for any failure by the Borrower or any other Loan Party to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by the Borrower or any other Loan Party of any of its obligations under this Agreement, any other Loan Document Document, or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (A) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Security Document or (B) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final non-appealable judgment of a court of competent jurisdiction). Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of a Responsible Officer of the Borrower or a certificate of an officer of the Administrative Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Administrative Agent, the Borrower or any other Loan Party. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent factsapplicable law.