Investors’ Representative. (a) An Investors’ Representative — a professional services firm that is independent of the Sponsor and its affiliates and that does not otherwise perform material services for the Sponsor, Systematic Momentum FuturesAccess or any affiliated entity (other than as an investors’ representative for other funds) — may be appointed by the Sponsor from time to time as a means of providing (or withholding) the informed consent of Investors required for Systematic Momentum FuturesAccess to enter into certain transactions which otherwise may be inappropriate or impermissible due to the conflicts of interest involved. The transactions submitted to the Investors’ Representative for consent will typically be transactions which the Sponsor believes to be in the best interests of Systematic Momentum FuturesAccess but which, nevertheless, may require Investor consent under Section 206(3) or other applicable provisions of the Investment Advisers Act of 1940, as amended (the “Advisers Act”). The role of the Investors’ Representative will not be to make investment recommendations or pricing determinations nor to review the merits of any transaction presented to it, but only to confirm that the conflicts of interest involved have been resolved and that Systematic Momentum FuturesAccess enters into such transactions on an arm’s-length basis. The Investors’ Representative will be exculpated and indemnified by Systematic Momentum FuturesAccess to the same extent as the Sponsor.
(b) In the event an Investors’ Representative is appointed, the Sponsor will notify Investors of any change in the appointment of the Investors’ Representative and will report annually to Investors all transactions
Investors’ Representative. An Investors’ Representative — a professional services firm that is independent of the Sponsor and its affiliates and that does not otherwise perform material services for the Sponsor, this FuturesAccess Fund or any affiliated entity (other than as an investors’ representative for other funds) — may be appointed by the Sponsor from time to time as a means of providing (or withholding) the informed consent of Investors required for this FuturesAccess Fund to enter into certain transactions which otherwise may be inappropriate or impermissible due to the conflicts of interest involved. The transactions submitted to the Investors’ Representative for consent will typically be transactions which the Sponsor believes to be in the best interests of this FuturesAccess Fund but which, nevertheless, may require Investor consent under Section 206(3) or other applicable provisions of the Investment Advisers Act of 1940, as amended (the “Advisers Act”). The role of the Investors’ Representative will not be to make investment recommendations or pricing determinations nor to review the merits of any transaction presented to it, but only to confirm that the conflicts of interest involved have been resolved and that this FuturesAccess Fund enters into such transactions on an arm’s-length basis. The Investors’ Representative will be exculpated and indemnified by this FuturesAccess Fund to the extent that its actions are not determined to constitute fraud, bad faith, negligence, gross negligence or reckless or intentional misconduct.
Investors’ Representative. (a) An Investors’ Representative — a professional services firm that is independent of the Sponsor and its affiliates and that does not otherwise perform material services for the Sponsor, this FuturesAccess Fund or any affiliated entity (other than as an investors’ representative for other funds) — may be appointed by the Sponsor from time to time as a means of providing (or withholding) the informed consent of Investors required for this FuturesAccess Fund to enter into certain transactions which otherwise may be inappropriate or impermissible due to the conflicts of interest involved. The transactions submitted to the Investors’ Representative for consent will typically be transactions which Sponsor believes to be in the best interests of this FuturesAccess Fund but which, nevertheless, may require Investor consent under Section 206(3) or other applicable provisions of the Investment Advisers Act of 1940, as amended (the “Advisers Act”). The role of the Investors’ Representative will not be to make investment recommendations or pricing determinations nor to review the merits of any transaction presented to it, but only to confirm that the conflicts of interest involved have been resolved and that this FuturesAccess Fund enters into such transactions on an arm’s-length basis. The Investors’ Representative will be exculpated and indemnified by this FuturesAccess Fund to the extent that its actions are not determined to constitute fraud, bad faith, negligence, gross negligence or reckless or intentional misconduct.
(b) In the event an Investors’ Representative is appointed, Sponsor will notify Investors of any change in the appointment of the Investors’ Representative and will report annually to Investors all transactions approved by the Investors’ Representative during the fiscal-year period then ended. Sponsor may resolve conflict of interest situations itself without referring the matter to the Investors’ Representative, unless otherwise required by law.
(c) By subscribing for Units in this FuturesAccess Fund, each Investor expressly authorizes Sponsor to appoint an Investors’ Representative to act as its agent in consenting (or withholding consent) to transactions presented to it.
Investors’ Representative. 11.1 All of the parties to the Agreement agree that Person named in the recitals of this Agreement is hereby appointed, effective from the date hereof, to act as the Investors’ Representative under this Agreement in accordance with the terms of this ARTICLE XI. In the event of the death, resignation, incapacity, bankruptcy or removal of the Investors’ Representative, then Investors who were entitled to purchase a majority of the number of the Purchased Shares shall be entitled to appoint successor Investors’ Representative. The Investors’ Representative may disclose any and all information obtained under or in connection with this Agreement to any and all of the Investors.
11.2 The Investors hereby authorize the Investors’ Representative (i) to take all action necessary in connection with any claims of the Investors under this Agreement, including any claims for indemnification or price adjustment, as well as the defense, negotiation and/or settlement of such claims, (ii) to give and receive all notices required to be given and take all action required or permitted to be taken under this Agreement and the other agreements contemplated hereby to which the Investors collectively as a group are parties, (iii) to execute and deliver all agreements, certificates and documents required or deemed appropriate by the Investors’ Representative in connection with, and for the implementation of, any of the transactions contemplated by this Agreement; (iv) to engage special counsel, accountants and other advisors and incur such other expenses in connection with any of the transactions contemplated by this Agreement; and (vi) to take such other action as the Investors’ Representative may deem appropriate, including: (a) agreeing to any modification or amendment of this Agreement and executing and delivering an agreement of such modification or amendment; (b) taking any actions required or permitted under this Agreement; and (c) all such other matters as the Investors’ Representative may deem necessary or appropriate to carry out the intents and purposes of this Agreement.
11.3 By their acceptance and adoption of this Agreement, the Investors agree that:
(a) notwithstanding any other provision herein to the contrary, the Company shall be entitled to rely conclusively on (i) the instructions and decisions of the Investors’ Representative as to the settlement of any claims for indemnification, price adjustment or otherwise or any other actions taken by the Investors’ Repre...
Investors’ Representative. The parties hereto acknowledge and agree that Xxxx Capital Partners, LLC shall be the designated representative of the Investors, or the Investors’ Representative, with the authority to make all decisions and determinations and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of the Investors, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of the Investors, and any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Investor shall be deemed so given if given to the Investors’ Representative and the Company shall be fully protected against liability in relying on the actions of the Investors’ Representative as being authorized by the Investors.
Investors’ Representative. 13.1 By executing and delivering this Agreement, each Investor shall have irrevocably authorized and appointed the Investors’ Representative such Investor’s representative and attorney- in- fact to act on behalf of such Investor with respect to this Agreement to act on behalf of the Investors in respect of this Agreement and, in particular:
13.1.1 except as provided in Clause 14.22, any notice, consent, election or request to be made or given by the Investors to any other Party under this Agreement may be made or given by the Investors’ Representative on behalf of all the Investors, and the Parties are not required to have regard to any notice served by or on behalf of the Investors (or any of them) by any other person;
13.1.2 any notice to be given by the Parties to the Investors under this Agreement shall be validly served on all the Investors (or any of them) if it is served on the Investors’ Representative in accordance with Clause 11.1; and
13.1.3 any variation to this Agreement pursuant to Clause 14.10 may be signed on behalf of the Investors by the Investors’ Representative.
13.2 The Investors’ Representative shall not be liable to any Investor for any claim whatsoever arising from any act or omission undertaken by him in his capacity as the Investors’ Representative save in the case of fraud by the Investors’ Representative to the extent finally judicially determined by a court of competent jurisdiction, and the Investors’ Representative shall be entitled to enforce this Clause 13.2 under the Contracts (Rights of Third Parties) Act 1999. The Investors shall severally and not jointly, indemnify and hold harmless the Investors’ Representative from and against, compensate it for, reimburse it for and pay any and all losses, liabilities, claims, actions, damages and expenses arising out of and in connection with its activities as Investors’ Representative under this Agreement.
Investors’ Representative. (a) Each Investor hereby consents to (i) the appointment of GSO Capital Partners LP as the Investors’ Representative hereunder and as the attorney-in-fact for and on behalf of such Investor, and (ii) the taking by the Investors’ Representative of any and all actions and the making of any decisions required or permitted by, or with respect to, this Agreement and the transactions contemplated hereby, including, without limitation, (A) the exercise of the power to agree to execute any consents under this Agreement and all other documents contemplated hereby and (B) to take all actions necessary in the judgment of the Investors’ Representative for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement and the transactions contemplated hereby.
(b) Each Investor shall be bound by the actions taken by the Investors’ Representative exercising the rights granted to it by this Agreement or the other documents contemplated by this Agreement, and the Company shall be entitled to rely on any such action or decision of the Investors’ Representative.
(c) If the Investors’ Representative shall resign or otherwise be unable to fulfill its responsibilities hereunder, the Investors shall appoint a new Investors’ Representative as soon as reasonably practicable by written consent of Holders of a majority of the then outstanding Registrable Securities by sending notice and a copy of the duly executed written consent appointing such new Investors’ Representative to the Company.
Investors’ Representative. The parties hereto acknowledge and agree that Yucaipa American Alliance Fund II, LLC shall be the designated representative of the Investors, or the Investors’ Representative, with the authority to make all decisions and determinations and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of the Investors, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of the Investors, and any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Investor shall be deemed so given if given to the Investors’ Representative and the Company shall be fully protected against liability in relying on the actions of the Investors’ Representative as being authorized by the Investors.
Investors’ Representative. The parties acknowledge and agree that the provisions granting REP Omni Holdings, L.P., a Delaware limited partnership the authority to act as the Designated Representative in Section 7.21 of that certain Tax Receivables Agreement, dated as of the date hereof, by and among Parent, Holdco, Opco and the Members (as defined therein) from time to time party thereto, shall apply to this Agreement, mutatis mutandis, and hereby grant the Designated Representative authority to act as the Investors’ Representative for purposes of this Agreement. For the avoidance of doubt, the limitations on liability and obligations with respect to indemnity and expense reimbursement in the Tax Receivables Agreement shall apply mutatis mutandis with respect to the Designated Representative’s activities under the authority granted herein.
Investors’ Representative. (a) The Investors irrevocably appoint the Initial Investor as the sole and exclusive agent, proxy and attorney-in-fact for the Investors for all purposes of this Agreement, with full and exclusive power and authority to act on the Investors’ behalf (the “Investors’ Representative”). The appointment of the Investors’ Representative hereunder is coupled with an interest, shall be irrevocable and shall not be affected by the death, incapacity, insolvency, bankruptcy, illness or other inability to act of any Investor. Without limiting the generality of the foregoing, the Investors’ Representative is hereby authorized, on behalf of the Investors, to:
(i) receive and give all notices and service of process, make all filings, make all decisions, designations, selections, objections, elections, comments, requests and take all other actions or any other actions directly or indirectly arising out of or relating to this Agreement;
(ii) execute and deliver, should it elect to do so in its good faith discretion, on behalf of the Investors, any amendment to, or waiver of, any term or provision of this Agreement, or any consent, acknowledgment or release relating to this Agreement; and
(iii) take all other actions permitted or required to be taken by or on behalf of the Investors under this Agreement and exercise any and all rights that the Investors are permitted or required to do or exercise under this Agreement.
(b) The Investors’ Representative shall not be held liable by any of the Investors for actions or omissions in exercising or failing to exercise all or any of the power and authority of the Investors’ Representative pursuant to this Agreement, except in the case of the Investors’ Representative’s gross negligence, bad faith or willful misconduct. The Investors’ Representative shall be entitled to rely on the advice of counsel, public accountants or other independent experts that it reasonably determines to be experienced in the matter at issue, and will not be liable to any Investor for any action taken or omitted to be taken in good faith based on such advice. The Investors will severally and not jointly indemnify (each in proportion to such Investor’s respective Company Common Share ownership divided by the total number of Company Common Shares owned by all Investors) the Investors’ Representative from any Losses arising out of its serving as the Investors’ Representative hereunder, except for Losses arising out of or caused by the Investors’ Representative’...
