Designated Representatives (a) With the delivery of this Agreement, the Subordination Agent shall furnish to each Liquidity Provider and each Trustee, and from time to time thereafter may furnish to each Liquidity Provider and each Trustee, at the Subordination Agent’s discretion, or upon any Liquidity Provider’s or any Trustee’s request (which request shall not be made more than one time in any 12-month period), a certificate (a “Subordination Agent Incumbency Certificate”) of a Responsible Officer of the Subordination Agent certifying as to the incumbency and specimen signatures of the officers of the Subordination Agent and the attorney-in-fact and agents of the Subordination Agent (the “Subordination Agent Representatives”) authorized to give Written Notices on behalf of the Subordination Agent hereunder. Until each Liquidity Provider and each Trustee receives a subsequent Subordination Agent Incumbency Certificate, it shall be entitled to rely on the last Subordination Agent Incumbency Certificate delivered to it hereunder.
Executive’s Cooperation During the Employment Period and for a period of two years thereafter, Executive shall cooperate with the Company and its Affiliates in any internal investigation, any administrative, regulatory or judicial investigation or proceeding or any dispute with a third party as reasonably requested by the Company (including, without limitation, Executive being available to the Company upon reasonable notice for interviews and factual investigations, appearing at the Company’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the Company all pertinent information and turning over to the Company all relevant documents which are or may come into Executive’s possession, all at times and on schedules that are reasonably consistent with Executive’s other permitted activities and commitments). In the event the Company requires Executive’s cooperation in accordance with this Section, the Company shall reimburse Executive solely for reasonable travel expenses (including lodging and meals) upon submission of receipts.
Cooperation and Coordination The Parties acknowledge and agree that it is their mutual objective and intent to minimize, to the extent feasible and legal, taxes payable with respect to their collaborative efforts under this Agreement and that they shall use all commercially reasonable efforts to cooperate and coordinate with each other to achieve such objective.
Member Representative (a) Pursuant to the Deal Approval, and in any event upon the delivery (whether prior to the date of this Agreement or otherwise) of an executed Letter of Transmittal to Parent in accordance with this Agreement and without any further action on the part of any Member, each Member shall thereby, and each Management Seller or other Rollover Holdco Member and, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity does hereby, irrevocably appoint the Member Representative as the sole representative of such Member, Management Seller or other Rollover Holdco Member or, solely with respect to the period prior to the consummation of the Closing, Rollover Holdco and each Acquired Entity as the case may be (each, a “Represented Party”), to act as the agent and on behalf of such Represented Party regarding any matter relating to or under this Agreement, the Escrow Agreement, the Credit Agreement and the Letters of Transmittal (the “Represented Documents”) including for the purposes of (i) executing and delivering the Represented Documents (it being understood that no amendment thereto shall be made that by Law requires further approval by such Represented Party without such further approval), and taking all actions required or permitted to be taken under such Represented Documents, (ii) on behalf of the Members, (x) directing the Escrow Agent to make payment of the Escrow Funds in accordance with Section 2.14, Article 12 and the Escrow Agreement, (y) agreeing to, negotiating, entering into settlements and compromises of and complying with orders of courts and awards of arbitrators with respect to Section 2.14, Article 12 and the Escrow Agreement and (z) acting for the Members with regard to all matters pertaining to indemnification pursuant to Section 2.14, Article 12 and the Escrow Agreement, including the power to compromise any claim on behalf of the Members thereunder and to transact matters of litigation or other claims and to bring any Proceeding on behalf of the Members under Section 2.03(b)(iv), Article 12, Section 9.11 or Section 14.05, (iii) giving, receiving and forwarding all notices and communications required to be given or received by the Represented Parties under the Represented Documents and in connection with any of the Transactions, including receiving service of process in connection with any claims thereunder, (iv) engaging attorneys, accountants, financial and other advisors, paying agents and other Persons necessary or appropriate, in the sole discretion of the Member Representative in the performance of its duties under the Represented Documents, and authorizing and directing the disbursement of funds to pay the fees and expenses of such Persons (v) granting any consent, approval or waiver on behalf of the Members, the Management Sellers or other Rollover Holdco Member or, prior to the Closing, the Acquired Entities under this Agreement prior to, at and following the Closing (including pursuant to Section 14.02); and (vi) taking all actions or refraining from doing any further act or deed on its own behalf or on behalf of any Represented Party that the Member Representative deems necessary or appropriate in its discretion relating to the subject matter of the Represented Documents, as fully and completely as the Represented Parties could do if personally present. All decisions and actions by the Member Representative are binding upon all Represented Parties, and no Represented Party shall have the right to object, dissent, protest or otherwise contest the same. As the representative of the Represented Parties under this Agreement, the Member Representative shall act as the agent for all Represented Parties, shall have authority to bind each such Represented Party in accordance with this Agreement, and Parent may rely on such appointment and authority until the receipt of notice of the appointment of a successor in accordance with Section 14.14(d). Parent may conclusively rely upon, without independent verification or investigation, all decisions made by the Member Representative in connection with the Represented Documents in writing.
Representative For purposes of this Agreement, the Escrowed Holders, by virtue of the approval of the Mergers and this Agreement and without any further action on the part of any such Escrowed Holder or the Company, shall be deemed to have consented to the appointment of the Representative, as the exclusive agent and attorney-in-fact under this Agreement, the Paying Agent Agreement, and the Escrow Agreement for and on behalf of each such Escrowed Holder and the taking by Representative of any and all actions and the making of any decisions required or permitted to be taken by the Representative under and subject to the terms, conditions and limitations, of this Agreement, the Paying Agent Agreement, and the Escrow Agreement, including the exercise of the power to (a) prepare, execute and deliver this Agreement and the Transaction Documents to which it is a party, any document, certificate or other instrument required to be delivered by or on behalf of the Escrowed Holders and any amendments hereto and thereto, (b) authorize delivery to Parent and the Surviving Company of the Escrow Fund or any 99 portion thereof, in satisfaction of Indemnification Claims, (c) agree to, negotiate, enter into settlements and compromises of and comply with orders of courts and awards of arbitrators with respect to such Indemnification Claims and to pursue remedies and Legal Proceedings in connection with any alleged breach of this Agreement, (d) resolve any Indemnification Claims, (e) make and settle determinations and calculations with respect to distributions and allocations of the Net Aggregate Consideration and any portion thereof, including, the Escrow Fund and the Representative Expense Amount, (f) to give and receive notices and communications hereunder, and (g) take all actions necessary in the judgment of Representative for the accomplishment of the foregoing (including engaging counsel, accountants or other advisors in connection with the foregoing matters) and all of the other terms, conditions and limitations of this Agreement, the Paying Agent Agreement, and the Escrow Agreement or that are specifically mandated by the terms of this Agreement. Notwithstanding the foregoing, the Representative shall have no obligation to act on behalf of the Escrowed Holders, except as expressly provided herein, in the Escrow Agreement and the Paying Agent Agreement, and for purposes of clarity, there are no obligations of the Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. The powers, immunities and rights to indemnification granted to the Representative Group hereunder: (i) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Escrowed Holder and shall be binding on any successor thereto, and (ii) shall survive the delivery of an assignment by any Escrowed Holder of the whole or any fraction of his, her or its interest in the Escrow Fund. The Escrowed Holders and their successors will be bound by all actions taken by Representative in connection with this Agreement, the Escrow Agreement, and the Paying Agent Agreement as if expressly confirmed and ratified in writing by the Escrowed Holders, all defenses which may be available to any Escrowed Holder to contest, negate or disaffirm the action of the Representative taken in good faith under this Agreement, the Escrow Agreement, or the Paying Agent Agreement are waived, and Parent and the Surviving Company shall be entitled to rely on any action or decision of Representative.. Neither the Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Representative Group”), will incur liability with respect to any action taken or suffered by it in reliance upon any notice, direction, instruction, consent, statement or other document believed by it to be genuine and to have been signed by the proper person (and shall have no responsibility to determine the authenticity thereof), nor for any other action or inaction in connection with the acceptance or administration of the Representative’s responsibilities hereunder, under the Escrow Agreement or the Paying Agent Agreement, except its own willful misconduct, bad faith or gross negligence. In all questions arising under this Agreement, the Escrow Agreement or the Paying Agent Agreement, Representative may: (i) rely on the advice of counsel, and Representative will not be liable to the Escrowed Holders for anything done, omitted or suffered in good faith by Representative based on such advice, (ii) rely upon the Allocation Schedule, (iii) rely upon any signature believed by it to be genuine, and (iv) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Escrowed Holder or other party. The Escrowed Holders shall, severally and not jointly, based on their Indemnity Pro Rata Share, indemnify, defend and hold harmless the Representative Group and its successors and assigns from and against any and all suits, actions, causes of action, losses, liabilities, damages, claims, penalties, fines, forfeitures, fees, costs, judgments, amounts paid in settlement and expenses (including reasonable attorneys’ fees and court costs and fees and expenses of counsel and experts and in connection with seeking recovery from insurers, and all expenses of document location, duplication and shipment) (collectively,
Service Coordinators Each Party has designated an employee or title as the key contact for the day-to-day implementation or monitoring of each Service as specified in the applicable Transition Service Schedule (each, a “Service Coordinator”). The Parties shall direct communications relating to specific Services to the applicable Service Coordinators. The Service Coordinators shall report to the Transition Committee from time to time, as directed by the members of the Transition Committee designated by the applicable Party.
Seller Representative (a) Each Seller Guarantor and each Seller irrevocably appoints Seller Representative to act as such Seller Guarantor’s and such Seller’s exclusive agent and true and lawful attorney-in-fact with full power of substitution to do on behalf of such Seller Guarantor and such Seller any and all things, including executing any and all documents, which may be necessary, convenient or appropriate to facilitate the consummation of the Stock Purchase, including: (i) receiving and disbursing payments to be made hereunder; (ii) receiving notices and communications pursuant to this Agreement and the Seller Ancillary Agreements; (iii) administering this Agreement and the Seller Ancillary Agreements, including the initiation and resolution of any disputes or claims; (iv) making determinations to settle any dispute with respect to the purchase price adjustments contemplated by Section 2.3(b); (v) resolving, settling or compromising claims for indemnification asserted against the Seller Guarantors and the Sellers pursuant to Article 12; (vi) agreeing to amendments of this Agreement, waivers of conditions and obligations under this Agreement and the Seller Ancillary Agreements; (vii) asserting claims for or defending claims of indemnification under Article 8 and resolving, settling or compromising any such claim; (viii) taking any other actions of the Seller Guarantor and the Sellers under this Agreement and the Seller Ancillary Agreements; and (ix) performing all acts, as contemplated by or deemed advisable by the Seller Representative in connection with this Agreement, the Escrow Agreement, the Seller Representative Engagement Agreement and the Seller Ancillary Agreements. Notwithstanding the foregoing, the Seller Representative shall have no obligation to act on behalf of the Sellers, except as expressly provided herein, in the Escrow Agreement, in the Seller Ancillary Agreements and in the Seller Representative Engagement Agreement, and for purposes of clarity, there are no obligations of the Seller Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Letter. A decision, act, consent or instruction of Seller Representative shall constitute a decision for all of the Seller Guarantors and the Sellers under this Agreement, the Seller Ancillary Agreements, the Escrow Agreement, the Seller Representative Engagement Agreement and the transactions contemplated hereby and thereby, and shall be final, binding and conclusive upon the Seller Guarantors and Sellers and their successors as if expressly ratified and confirmed in writing, and Acquiror, its Affiliates and Representatives may rely upon any such decision, act, consent or instruction of Seller Representative as being the decision, act, consent or instruction of each of the Seller Guarantors and the Sellers (without investigation) and none of Acquiror or any of its Affiliates or Representatives shall have any liability to any Seller Guarantor or any Seller as a result of such reliance. Any payment by Acquiror to Seller Representative (in such capacity) under this Agreement or any Seller Ancillary Agreement will be considered a payment by Acquiror to the Seller Guarantors and the Sellers. The powers, immunities and rights to indemnification granted to the Seller Representative Group are coupled with an interest and will be irrevocable by any Seller Guarantor or any Seller in any manner or for any reason and survive the death, incompetence, bankruptcy or liquidation of any Seller and shall be binding on any successor thereto, and shall survive the delivery of an assignment by any Seller of the whole or any fraction of his, her or its interest in the Adjustment Escrow Amount.
Stockholder Representative (a) The Company (and pursuant to the terms of the Company Stockholder Consent, each of the Company’s stockholders) irrevocably appoints the Stockholder Representative to act as representative, agent, proxy and attorney-in-fact for the Company Stockholders for all purposes under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including, without limitation, the full power and authority on each such Company Stockholder’s behalf to: (i) receive notices or service of process, (ii) negotiate, determine, compromise, settle and take any other action permitted or called for by any Company stockholder under this Agreement, (iii) execute and deliver any termination, amendment or waiver to this Agreement in connection therewith, (iv) engage such counsel, experts and other agents and consultants as the Stockholder Representative deems necessary in connection with exercising the powers granted hereunder and, in the absence of bad faith on the part of the Stockholder Representative, will be entitled to conclusively rely on the opinions and advice of such Persons, (v) receive funds and make or release payments of funds to pay any amounts that the Stockholder Representative has incurred or reasonably expects to incur in connection with the Company stockholders’ obligations under this Agreement, the Merger and otherwise in connection with the Contemplated Transactions, including amounts required to pay the fees and expenses of professionals incurred in connection with the Contemplated Transactions, (vi) to execute closing statements, settlement statements and funds flow statements on behalf of the Company’s stockholders and the Company. The Company Stockholders acknowledge that Parent and Merger Sub will be entitled to conclusively rely upon, without independent investigation, any act, notice, instruction or communication of the Stockholder Representative as provided in this Section 10.1 as the acts of the Company Stockholders and will not be liable in any manner whatsoever for any of Parent or Merger Sub’s actions, as applicable, taken or not taken in reliance upon the acts or omissions or communications or writings given or executed by the Stockholder Representative.
Note Holder Representatives (a) The Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (the “Controlling Note Holder Representative”). The Controlling Note Holder shall have the right in its sole discretion at any time and from time to time to remove and replace the Controlling Note Holder Representative. When exercising its various rights under Section 5 and elsewhere in this Agreement, the Controlling Note Holder may, at its option, in each case, act through the Controlling Note Holder Representative. The Controlling Note Holder Representative may be any Person, including, without limitation, the Controlling Note Holder, any officer or employee of the Controlling Note Holder, any affiliate of the Controlling Note Holder or any other unrelated third party (other than the Mortgage Loan Borrower, any manager of a Mortgaged Property or any principal or Affiliate thereof). No such Controlling Note Holder Representative shall owe any fiduciary duty or other duty to any other Person (other than the Controlling Note Holder). All actions that are permitted to be taken by the Controlling Note Holder under this Agreement may be taken by the Controlling Note Holder Representative acting on behalf of the Controlling Note Holder. Any Servicer acting on behalf of the Lead Securitization Note Holder shall not be required to recognize any Person as a Controlling Note Holder Representative until the Controlling Note Holder has notified such Servicer or Trustee of such appointment and, if the Controlling Note Holder Representative is not the same Person as the Controlling Note Holder, the Controlling Note Holder Representative provides any Servicer or Trustee with written confirmation of its acceptance of such appointment, an address and telecopy number for the delivery of notices and other correspondence and a list of officers or employees of such person with whom the parties to this Agreement may deal (including their names, titles, work addresses and telecopy numbers). The Controlling Note Holder shall promptly deliver such information to any Servicer. None of the Servicers, Operating Advisor and Trustee shall be required to recognize any person as a Controlling Note Holder Representative until they receive such information from the Controlling Note Holder. The Controlling Note Holder agrees to inform each such Servicer or Trustee of the then-current Controlling Note Holder Representative. Neither the Controlling Note Holder Representative nor the Controlling Note Holder will have any liability to any other Note Holder or any other Person for any action taken, or for refraining from the taking of any action or the giving of any consent or the failure to give any consent pursuant to this Agreement or the Lead Securitization Servicing Agreement, or errors in judgment, absent any loss, liability or expense incurred by reason of its willful misfeasance, bad faith or gross negligence. The Note Holders agree that the Controlling Note Holder Representative and the Controlling Note Holder (whether acting in place of the Controlling Note Holder Representative when no Controlling Note Holder Representative shall have been appointed hereunder or otherwise exercising any right, power or privilege granted to the Controlling Note Holder hereunder) may take or refrain from taking actions, or give or refrain from giving consents, that favor the interests of one Note Holder over any other Note Holder, and that the Controlling Note Holder Representative and the Controlling Note Holder may have special relationships and interests that conflict with the interests of another Note Holder and, absent willful misfeasance, bad faith or gross negligence on the part of the Controlling Note Holder Representative or the Controlling Note Holder, as the case may be, agree to take no action against the Controlling Note Holder Representative, the Controlling Note Holder or any of their respective officers, directors, employees, principals or agents as a result of such special relationships or interests, and that neither the Controlling Note Holder Representative nor the Controlling Note Holder will be deemed to have been grossly negligent or reckless, or to have acted in bad faith or engaged in willful misfeasance or to have recklessly disregarded any exercise of its rights by reason of its having acted or refrained from acting, or having given any consent or having failed to give any consent, solely in the interests of any Note Holder. Each Non-Controlling Note Holder shall provide notice of its identity and contact information (including any change thereof) to the Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization; provided, that each Initial Note Holder shall be deemed to have provided such notice on the date hereof. The Trustee, Certificate Administrator, the Master Servicer and the Special Servicer under the Lead Securitization shall be entitled to conclusively rely on such identity and contact information received by it and shall not be liable in respect of any deliveries hereunder sent in reliance thereon. Each Non-Controlling Note Holder shall have the right at any time to appoint a representative in connection with the exercise of its rights and obligations with respect to the Mortgage Loan (with respect to such Note Holder, the “Non-Controlling Note Holder Representative”). All of the provisions relating to the Controlling Note Holder and the Controlling Note Holder Representative set forth in the first paragraph of this Section 6(a) (except those contained in the last sentence thereof) and the second paragraph of this Section 6(a) shall apply to each Non-Controlling Note Holder and its Non-Controlling Note Holder Representative mutatis mutandis. For so long as the Controlling Note is included in the Lead Securitization, the “Directing Certificateholder” under the Lead Securitization Servicing Agreement (or any other party designated under the Lead Securitization Servicing Agreement to exercise the rights of the Controlling Note Holder hereunder) shall be the Controlling Note Holder Representative.
Shareholder Representative (a) By the execution and delivery of this Agreement or any letter of transmittal, including counterparts thereof, each of the Shareholders of the Company Group will irrevocably constitute and appoint the Shareholder Representative as the true and lawful agent and attorney-in-fact of such Shareholder with full powers of substitution to act in the name, place and stead of such Shareholder with respect to the performance on behalf of such Shareholder under the terms and provisions hereof and to do or refrain from doing all such further acts and things, and to execute all such documents, as the Shareholder Representative shall deem necessary or appropriate in connection with any transaction contemplated hereunder, including the power to: (i) act for such Shareholder with respect to the Indemnification Escrow Amount; (ii) amend, modify or waive any provision of the Transaction Documents in any manner; (iii) employ, obtain and rely upon the advice of legal counsel, accountants and other professional advisors as the Shareholder Representative, in the sole discretion thereof, deems necessary or advisable in the performance of the duties of the Shareholder Representative; (iv) act for such Shareholder with respect to all Purchase Price matters referred to herein; (v) incur any expenses, liquidate and withhold assets received on behalf of such Shareholder prior to their distribution to such Shareholder to the extent of any amount that the Shareholder Representative deems necessary for payment of or as a reserve against expenses, and pay such expenses or deposit the same in an interest-bearing bank account established for such purpose, with all such expenses reimbursed to the Shareholder Representative out of amounts received out of the Indemnification Escrow Amount, or if no amounts are received, by reimbursement from the Shareholders in accordance with their pro rata percentage ownership; (vi) receive all notices, communications and deliveries hereunder on behalf of such Shareholder; (vii) do or refrain from doing any further act or deed on behalf of such Shareholder that the Shareholder Representative deems necessary or appropriate, in the sole discretion of the Shareholder Representative, relating to the subject matter hereof as fully and completely as such Shareholder could do if personally present and acting and as though any reference to such Shareholder herein was a reference to the Shareholder Representative; or (viii) direct, authorize or permit any third party paying agent, if applicable, to take any of the foregoing actions; provided, however, that the Shareholder Representative shall have no obligation to act, except as expressly provided herein.
