Common use of Appointment of Holders’ Representative Clause in Contracts

Appointment of Holders’ Representative. (a) For purposes of (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Note, and entering into settlements and compromises in respect of any such dispute, (ii) subject to 9.08(d), engaging counsel, accountants or other advisors in furtherance thereof, including in connection with any proceeding to resolve a dispute related to the Company’s calculation of Net Revenues pursuant to this Indenture or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture on behalf of the Holders and (iv) to do any and all things and to take any and all action that the Holders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights of the Holders, the Holders’ Representative is hereby appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken by the Holders’ Representative under this Indenture shall be binding upon each Holder and such Holder’s successors as if expressly confirmed and ratified in writing by such Holder, and all defenses which may be available to any Holder to contest, negate or disaffirm the action of the Holders’ Representative taken in good faith under this Indenture are waived. Notwithstanding the foregoing, the Holders’ Representative shall have no obligation to act on behalf of the Holders, except as expressly provided herein. By executing this Indenture, the Holders’ Representative accepts such appointment, authority and power. (b) Neither the Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall be liable to any Holder for any action or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunder, unless and only to the extent such action or failure to act constitutes fraud, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses and to indemnify the Holders’ Representative Group for, and defend and hold the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement arising out of or in connection with the Holders’ Representative’s duties under this Indenture, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely to the extent reasonably incurred and (ii) shall exclude any loss or liability of the Holders’ Representative Group that has been finally determined by a court of competent jurisdiction to be a result of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,

Appointment of Holders’ Representative. (a) For purposes Without further action of (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Note, and entering into settlements and compromises in respect of any such dispute, (ii) subject to 9.08(d), engaging counsel, accountants or other advisors in furtherance thereof, including in connection with any proceeding to resolve a dispute related to the Company’s calculation of Net Revenues pursuant to this Indenture or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture on behalf of the Holders and (iv) to do any and all things and to take any and all action that the Holders’ RepresentativeRepresentative or the Holders, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights as partial consideration of the Holdersbenefits conferred by this Agreement, the Holders’ Representative is hereby irrevocably constituted and appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions act in the name, place and determinations and stead of each Holder with respect to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to taking by the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall all actions and the making of any decisions required or permitted to be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken by the Holders’ Representative under this Indenture Agreement. The power of attorney granted herein is coupled with an interest and is irrevocable and may be delegated by the Holders’ Representative. No bond shall be binding upon each Holder and such Holder’s successors as if expressly confirmed and ratified in writing by such Holder, and all defenses which may be available to any Holder to contest, negate or disaffirm the action required of the Holders’ Representative, and the Holders’ Representative taken shall receive no compensation for its services. (b) If at any time the Holders’ Representative shall incur out of pocket expenses in good faith under this Indenture are waived. Notwithstanding connection with the foregoingexercise of its duties hereunder, the Holders’ Representative shall have no obligation be entitled to act reduce any future payments (if any) due to Holders hereunder pro rata (based on behalf their respective Sharing Percentages to which such costs and expenses relate) by the amount of such costs and expenses. In connection with the Holders, except as expressly provided herein. By executing performance of its rights and obligations under this IndentureAgreement and the taking of any and all actions in connection therewith, the Holders’ Representative accepts such appointmentshall not be required to expend any of its own funds (though, authority for the avoidance of doubt, it may do so at any time and powerfrom time to time in its sole discretion). (bc) Neither the The Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall not be liable to any Holder for any action act of the Holders’ Representative arising out of or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunderits duties under this Agreement, unless and only except to the extent any liability, loss, damage, penalty, fine, cost or expense is actually incurred by such action or failure to act constitutes fraudHolder as a proximate result of the gross negligence, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses (it being understood that any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of good faith and to indemnify reasonable judgment). The Holders’ Representative shall not be liable for, and shall be indemnified by the Holders (on a several but not joint basis) for, any liability, loss, damage, penalty or fine incurred by the Holders’ Representative Group for, (and defend and hold any cost or expense incurred by the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement connection therewith and herewith and not previously reimbursed pursuant to subsection (b) above) arising out of or in connection with the Holders’ Representative’s acceptance or administration of its duties under this IndentureAgreement, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely except to the extent reasonably incurred and (ii) shall exclude that any loss such liability, loss, damage, penalty, fine, cost or liability expense is the proximate result of the gross negligence, bad faith or willful misconduct of the Holders’ Representative Group (it being understood that has been finally determined any act done or omitted pursuant to the advice of legal counsel shall be conclusive evidence of good faith and reasonable judgment); provided, however, in no event shall any Holder be obligated to indemnify the Holders’ Representative hereunder for any liability, loss, damage, penalty, fine, cost or expense to the extent (and only to the extent) that the aggregate amount of all liabilities, losses, damages, penalties, fines, costs and expenses indemnified by such Holder hereunder is or would be in excess of the aggregate payments under this Agreement actually remitted to such Holder. Each Holder’s receipt of any and all benefits to which such Holder is entitled under this Agreement, if any, is conditioned upon and subject to such Holder’s acceptance of all obligations, including the obligations of this Section 8.16(c), applicable to such Holder under this Agreement. (d) Any decision, act, consent or instruction of the Holders’ Representative shall constitute a court decision of competent jurisdiction all Holders and shall be final, binding and conclusive upon each Holder, and the Company may rely upon any decision, act, consent or instruction of the Holders’ Representative as being the decision, act, consent or instruction of each Holder. The Company is hereby relieved from any liability to be a result any person for any acts done by the Company in accordance with any such decision, act, consent or instruction of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,.

Appointment of Holders’ Representative. By executing this Agreement or accepting any consideration as contemplated by ‎Article III of the Merger Agreement, Stockholder irrevocably appoints, authorizes and empowers the transaction committee of the board of directors that approved the transactions contemplated by the Merger Agreement (athe “Holder Representative”) For purposes to act as a representative for the benefit of the pre-Closing Company Stockholders (each, a “Pre-Closing Holder”, and collectively, “Pre-Closing Holders”), including Stockholder, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder, including Stockholder, in connection with, and to facilitate the consummation of, the transactions contemplated by this Agreement, the Merger Agreement and any Ancillary Agreements, which shall include (without limitation) the power and authority to: (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Noteexecute and deliver, and entering into settlements receive deliveries of the Merger Agreement and compromises any Ancillary Agreements (with such modifications or changes herein or therein as to which the Holder Representative, in respect of any such disputeits sole and absolute discretion, shall have consented); (ii) subject interpret the terms and provisions of the Merger Agreement and the documents to 9.08(d)be executed and delivered in connection therewith; (iii) execute and deliver, engaging counseland receive deliveries of, accountants or other advisors in furtherance thereofexecute and deliver such amendments, including modifications, waivers and consents in connection with the Merger Agreement and any proceeding to resolve a dispute related Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby as the Holder Representative, in its sole discretion, may deem necessary or desirable; (iv) receive service of process; (v) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders; (vi) issue notices and instructions to the Company’s calculation Exchange Agent in accordance with the terms of Net Revenues pursuant to this Indenture the Merger Agreement and any applicable Ancillary Agreements; (vii) assert or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture pursue on behalf of the Pre-Closing Holders any Action or investigation against any of the other parties to the Merger Agreement or any Ancillary Agreement, consenting to, compromising or settling any such Actions or investigations, conducting negotiations with any of the other parties to the Merger Agreement or any Ancillary Agreement and their respective Representatives regarding such Action or investigations, and, in connection therewith, to: (A) assert or institute any Action or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (ivC) file and prosecute appeals from any decision, judgment or award rendered in any such Action or investigation; and (viii) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holders’ Holder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights of the Holders, the Holders’ Representative is hereby appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken transactions contemplated by the Holders’ Representative under this Indenture shall be binding upon each Holder and such Holder’s successors as if expressly confirmed and ratified in writing by such Holder, Merger Agreement and all defenses which may be available to any Holder to contest, negate or disaffirm the action of the Holders’ Representative taken in good faith under this Indenture are waived. Notwithstanding the foregoing, the Holders’ Representative shall have no obligation to act Ancillary Agreements on behalf of the HoldersPre-Closing Holders (but, except as expressly provided herein. By executing this Indenturein each case, the Holders’ Representative accepts such appointment, authority and power. (b) Neither the Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall be liable to any Holder for any action or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunder, unless and only subject to the extent such action or failure to act constitutes fraud, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company terms and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses conditions hereunder and to indemnify the Holders’ Representative Group for, and defend and hold the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement arising out of or in connection with the Holders’ Representative’s duties under this Indenture, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”thereunder); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely to the extent reasonably incurred and (ii) shall exclude any loss or liability of the Holders’ Representative Group that has been finally determined by a court of competent jurisdiction to be a result of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,.

Appointment of Holders’ Representative. By executing this Agreement or accepting any consideration as contemplated by ‎Article 2 of the Merger Agreement, subject to Section 12 below, Stockholder irrevocably appoints, authorizes and empowers Xxxxxxx Xxxxx to act as a representative for the benefit of the Pre-Closing Holders, including Stockholder, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder, including Stockholder, in connection with, and to facilitate the consummation of, the transactions contemplated by this Agreement, the Merger Agreement, including pursuant to any Ancillary Documents, which shall include (awithout limitation) For purposes of the power and authority to, subject to Section 12 below: (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Noteexecute and deliver, and entering into settlements receive deliveries of the Merger Agreement and compromises any Ancillary Documents (with such modifications or changes herein or therein as to which the Holder Representative, in respect of any such disputeits sole and absolute discretion, shall have consented); (ii) subject interpret the terms and provisions of the Merger Agreement and the documents to 9.08(d)be executed and delivered in connection therewith; (iii) execute and deliver, engaging counseland receive deliveries of, accountants execute and deliver such amendments, modifications, waivers and consents in connection with the Merger Agreement any Ancillary Document or other advisors the consummation of the transactions contemplated hereby or thereby as the Holder Representative, in furtherance thereofits sole discretion, may deem necessary or desirable; (iv) receive service of process; (v) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders (including in connection with any proceeding to resolve a dispute related ‎Section 2.6 or ‎Section 8.20 of the Merger Agreement); (vi) issue notices and instructions to the Company’s calculation Exchange Agent in accordance with the terms of Net Revenues pursuant to this Indenture the applicable Ancillary Documents; (vii) assert or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (ivC) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; and (viii) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holders’ Holder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights of the Holders, the Holders’ Representative is hereby appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken transactions contemplated by the Holders’ Representative under this Indenture shall be binding upon each Holder and such Holder’s successors as if expressly confirmed and ratified in writing by such Holder, Merger Agreement and all defenses which may be available to any Holder to contest, negate or disaffirm the action of the Holders’ Representative taken in good faith under this Indenture are waived. Notwithstanding the foregoing, the Holders’ Representative shall have no obligation to act Ancillary Documents on behalf of the HoldersPre-Closing Holders (but, except as expressly provided herein. By executing this Indenturein each case, the Holders’ Representative accepts such appointment, authority and power. (b) Neither the Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall be liable to any Holder for any action or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunder, unless and only subject to the extent such action or failure to act constitutes fraud, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company terms and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses conditions hereunder and to indemnify the Holders’ Representative Group for, and defend and hold the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement arising out of or in connection with the Holders’ Representative’s duties under this Indenture, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”thereunder); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely to the extent reasonably incurred and (ii) shall exclude any loss or liability of the Holders’ Representative Group that has been finally determined by a court of competent jurisdiction to be a result of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,.

Appointment of Holders’ Representative. By executing to this Letter of Transmittal or accepting any consideration as contemplated by Article 2 of the Merger Agreement you irrevocably appoint, authorize and empower Xxxxxxx Xxxxx to act as a representative for the benefit of the Pre-Closing Holders, including you, as the sole and exclusive agent and attorney-in-fact to act on behalf of each Pre-Closing Holder, including you, in connection with, and to facilitate the consummation of, the transactions contemplated by this Letter of Transmittal, the Merger Agreement, including pursuant to any Ancillary Documents, which shall include (awithout limitation) For purposes of the power and authority to: (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Noteexecute and deliver, and entering into settlements receive deliveries of the Merger Agreement and compromises any Ancillary Documents (with such modifications or changes herein or therein as to which the Holder Representative, in respect of any such disputehis sole and absolute discretion, shall have consented); (ii) subject interpret the terms and provisions of the Merger Agreement and the documents to 9.08(d)be executed and delivered in connection therewith; (iii) execute and deliver, engaging counseland receive deliveries of, accountants execute and deliver such amendments, modifications, waivers and consents in connection with the Merger Agreement any Ancillary Document or other advisors the consummation of the transactions contemplated hereby or thereby as the Holder Representative, in furtherance thereofhis sole discretion, may deem necessary or desirable; (iv) receive service of process; (v) make any calculations and determinations and settle any matters on behalf of all Pre-Closing Holders (including in connection with any proceeding to resolve a dispute related with‎ Section 2.6 or ‎Section 8.20 of the Merger Agreement); (vi) issue notices and instructions to the Company’s calculation Exchange Agent in accordance with the terms of Net Revenues pursuant to this Indenture the applicable Ancillary Documents; (vii) assert or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture pursue on behalf of the Pre-Closing Holders any Proceeding or investigation against any of the other Parties, consenting to, compromising or settling any such Proceedings or investigations, conducting negotiations with any of the other Parties and their respective Representatives regarding such Proceeding or investigations, and, in connection therewith, to: (A) assert or institute any Proceeding or investigation; (B) file any proofs of debt, claims and petitions as the Holder Representative may deem advisable or necessary; and (ivC) file and prosecute appeals from any decision, judgment or award rendered in any such Proceeding or investigation; and (viii) to make, execute, acknowledge and deliver all such other statements, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Holders’ Holder Representative, in its his sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights of the Holders, the Holders’ Representative is hereby appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken transactions contemplated by the Holders’ Representative under this Indenture shall be binding upon each Holder and such Holder’s successors as if expressly confirmed and ratified in writing by such Holder, Merger Agreement and all defenses which may be available to any Holder to contest, negate or disaffirm the action of the Holders’ Representative taken in good faith under this Indenture are waived. Notwithstanding the foregoing, the Holders’ Representative shall have no obligation to act Ancillary Documents on behalf of the HoldersPre-Closing Holders (but, except as expressly provided herein. By executing this Indenturein each case, the Holders’ Representative accepts such appointment, authority and power. (b) Neither the Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall be liable to any Holder for any action or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunder, unless and only subject to the extent such action or failure to act constitutes fraud, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company terms and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses conditions hereunder and to indemnify the Holders’ Representative Group for, and defend and hold the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement arising out of or in connection with the Holders’ Representative’s duties under this Indenture, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”thereunder); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely to the extent reasonably incurred and (ii) shall exclude any loss or liability of the Holders’ Representative Group that has been finally determined by a court of competent jurisdiction to be a result of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,.

Appointment of Holders’ Representative. (a) For purposes of (i) confirming or disputing the Company’s calculation of Gross Revenue, Net Revenues, Default Interest or the amount of any Principal Payment or Interest Payment pursuant to this Indenture or any Note, and entering into settlements and compromises in respect of any such dispute, (ii) subject to 9.08(d), engaging counsel, accountants or other advisors in furtherance thereof, including in connection with any proceeding to resolve a dispute related to the Company’s calculation of Net Revenues pursuant to this Indenture or the amount of any Principal Payment or Interest Payment, (iii) to give and receive notices, communications and consents under this Indenture on behalf of the Holders and (iv) to do any and all things and to take any and all action that the Holders’ Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described in this Indenture to enforce the rights of the Holders, the Holders’ Representative is hereby appointed, authorized and empowered, in each case subject to the rights and obligations of the Trustee set forth in this Indenture and the requirements of the Trust Indenture Act, and to the extent permitted by this Indenture and applicable law, including by virtue of a Holder’s receipt and ownership of a Note, and without any further action of any of the Holders or the Company, to be the exclusive representative, exclusive agent and attorney-in-fact of the Holders, with full power of substitution, to make all decisions and determinations and to act (or not act) and execute, deliver and receive all agreements, documents, instruments and consents on behalf of and as agent for the Holders at any time and in connection with, and that may be necessary or appropriate to accomplish the intent and to implement the provisions of, this Indenture, and such appointment and the powers, immunities and rights to indemnification granted to the Holders’ Representative Group hereunder: (a) are coupled with an interest and may not be revoked in whole or in part, (b) shall survive the death, incompetence, bankruptcy or liquidation of any Holder and shall be binding on any successor thereto and (c) shall survive the delivery of an assignment by any Holder of the whole or any fraction of his, her or its interest in the Payments. All actions taken by the Holders’ Representative under this Indenture shall be binding upon each Holder and such HolderXxxxxx’s successors as if expressly confirmed and ratified in writing by such Holder, and all defenses which may be available to any Holder to contest, negate or disaffirm the action of the Holders’ Representative taken in good faith under this Indenture are waived. Notwithstanding the foregoing, the Holders’ Representative shall have no obligation to act on behalf of the Holders, except as expressly provided herein. By executing this Indenture, the Holders’ Representative accepts such appointment, authority and power. (b) Neither the Holders’ Representative nor any of its Affiliates, nor any of its or their members, general or limited partners, managers, directors, officers, contractors, advisors agents and employees (collectively, the “Holders’ Representative Group”), shall be liable to any Holder for any action or failure to act in connection with the acceptance or administration of the Holders’ Representative’s responsibilities hereunder, unless and only to the extent such action or failure to act constitutes fraud, bad faith or willful misconduct as finally determined by a court of competent jurisdiction. The Company and each of the Holders agrees to promptly pay or procure the payment of the Holders’ Representative Expenses and to indemnify the Holders’ Representative Group for, and defend and hold the Holders’ Representative Group harmless against, any loss, liability, claim, demand, suit, damage, fee, cost, expense, judgment, fine or amount paid in settlement arising out of or in connection with the Holders’ Representative’s duties under this Indenture, including the reasonable out-of-pocket costs and expenses of defending the Holders’ Representative Group against any claims, charges, demands, suits or loss (collectively, the “Holders’ Representative Expenses”); provided that the “Holders’ Representative Expenses” (i) shall include the fees, disbursements and costs of counsel and other skilled professionals and costs incurred in connection with seeking recovery from insurers solely to the extent reasonably incurred and (ii) shall exclude any loss or liability of the Holders’ Representative Group that has been finally determined by a court of competent jurisdiction to be a result of the Holders’ Representative’s fraud, bad faith or willful misconduct. Such Holders’ Representative Expenses may be recovered (1) first, from the Representative Expense Fund,