Duties and Authority of Officers Except as modified by the Governance Board, the duties and authorities of the Officers are as set forth in Schedule 8.2.
Duties and Authority Executive shall serve as the Executive Vice President and Chief Financial Officer of the Company, with those authorities, duties and responsibilities customary to that position and such other authorities, duties and responsibilities as the Board of Directors of Parent (the "Board") or the Company's President and Chief Executive Officer may reasonably assign the Executive from time to time. The Executive shall use his best efforts, including the highest standards of professional competence and integrity, and shall devote substantially all his business time and effort, in and to his employment hereunder, and shall not engage in any other business activity which would conflict with the rendition of his services hereunder, except that the Executive may hold directorships or related positions in charitable, educational or not-for-profit organizations, or directorships in business organizations if approved by the President and Chief Executive Officer, and make passive investments, which do not interfere with the Executive's day-to-day acquittal of his responsibilities to the Company.
Organization and Authority of the Purchaser The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the Cayman Islands and has all necessary corporate power and authority to enter into this Agreement and the Ancillary Agreements to which it is a party, to carry out its obligations hereunder and thereunder and to timely consummate the transactions contemplated hereby and thereby. The Purchaser is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified and in good standing would not (a) materially adversely affect the ability of the Purchaser to carry on its business or (b) individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect. The execution and delivery by the Purchaser of this Agreement and the Ancillary Agreements to which it is a party, the performance by the Purchaser of its obligations hereunder and thereunder and the consummation by the Purchaser of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of the Purchaser and its shareholders. This Agreement has been, and upon their execution the Ancillary Agreements to which the Purchaser is a party shall have been, duly executed and delivered by the Purchaser, and (assuming due authorization, execution and delivery by the Seller) this Agreement constitutes, and upon their execution the Ancillary Agreements to which the Purchaser is a party shall constitute, legal, valid and binding obligations of the Purchaser, enforceable against the Purchaser in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency (including all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity). No action by the shareholders of the Purchaser is necessary, including, without limitation, pursuant to Nasdaq rules and regulations, to authorize this Agreement and the Ancillary Agreements or to timely consummate the transactions contemplated hereby and thereby (including the issuance of the Purchaser Shares comprising the Consideration). The Purchaser is and will at all times be in full compliance with all Nasdaq rules and regulations with respect to the absence of a shareholder vote in connection with the authorization of this Agreement and the Ancillary Agreements (including the issuance of the Purchaser Shares comprising the Consideration).
Organization and Authority of Seller (a) Seller is a corporation duly organized, validly existing and in good standing under the Laws of the state of Delaware, except where the failure to be in good standing would not reasonably be expected to prevent or materially impede, interfere with, hinder or delay the ability of Seller and its Subsidiaries to consummate the transactions contemplated by this Agreement and the Ancillary Agreements. Seller (or, if applicable, a Subsidiary of Seller) has all requisite corporate power and authority to enter into this Agreement and each of the Ancillary Agreements to which it is or will be a party, carry out its obligations hereunder and thereunder and consummate the transactions contemplated by this Agreement or the Ancillary Agreements (including all power and authority to sell, assign, transfer and convey the Shares as provided by this Agreement and to effect the Restructuring).
(b) The execution and delivery by Seller of this Agreement and any Ancillary Agreements to which it (or, if applicable, a Subsidiary of Seller) is or will be a party, the performance by Seller (or, if applicable, a Subsidiary of Seller) of its obligations hereunder and thereunder and the consummation by Seller (or, if applicable, a Subsidiary of Seller) of the transactions contemplated hereby and thereby have been and, in the case of the transactions contemplated by the Ancillary Agreements and the Restructuring, will be prior to Closing, duly and validly authorized and approved by all requisite corporate or other similar action on the part of Seller (or, if applicable, a Subsidiary of Seller).
(c) This Agreement has been duly and validly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium or similar Laws affecting creditors’ rights generally and by general equity principles (the “Enforceability Limitations”).
(d) Each of the Ancillary Agreements to which Seller or its Subsidiary is or will be a party has been or will be duly and validly executed and delivered by Seller or such Subsidiary, and (assuming due authorization, execution and delivery by the other party or parties thereto) constitutes or will constitute a legal, valid and binding obligation of Seller or such Subsidiary enforceable against Seller or such Subsidiary in accordance with its terms, except as such enforceability may be limited by the Enforceability Limitations.
Responsibility of the Custodian In performing its duties and obligations hereunder, the Custodian shall use reasonable care under the facts and circumstances prevailing in the market where performance is effected. Subject to the specific provisions of this Section, the Custodian shall be liable for any direct damage incurred by the Fund in consequence of the Custodian's negligence, bad faith or willful misconduct. In no event shall the Custodian be liable hereunder for any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if the Custodian has been advised of the possibility of such damages. It is agreed that the Custodian shall have no duty to assess the risks inherent in the Fund's Investments or to provide investment advice with respect to such Investments and that the Fund as principal shall bear any risks attendant to particular Investments such as failure of counterparty or issuer.
Appointment and Authority (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
Powers and authority It has the power to enter into and perform, and has taken all necessary action to authorise the entry into and performance of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents.
Responsibility of the Parties The Parties undertake to indemnify each other for any damage (loss) caused by their partial or complete non-performance or improper performance of the Agreement, and the indemnification of damage (loss) does not relieve the Parties from the performance/payment of their obligations under the Agreement. In addition, the Customer shall be liable for any damage (loss) caused to the Bank by its partial or complete non-performance or improper performance of the Agreement. Inter alia, in the event of a breach of the term specified in the subsection 3.3.6. of Annex N1 to the Bank Guarantee Agreement, Bank is entitled to charge the Customer with additional amount of the respective Interest (as the damage (loss) inflicted) for the period of breach of the term or the Bank shall be entitled to repay the above obligations not later than 14 (fourteen) calendar days after the written application. Indemnification of the damage (loss) does not release the Customer from the performance/payment of the obligations under the Agreement. Notwithstanding the guarantees specified in Sections 5.1 and 5.2. of Annex N1 to the Bank Guarantee Agreement, in order to ensure full and proper performance of the Customer’s obligations under the Agreement, and, respectively, to secure the Bank’s rights and claims, the Customer hereby expressly gives its prior consent that the Bank is fully authorized to: In the case of several debt arrears, determine the sequence and order of payments of Bank Guarantee and the payments under it; Block any Account of the Customer without acceptance in the amount of the payment due and in accordance with its applicable rules until any payment is under the Agreement is fully and duly covered; Write off without acceptance all payments due from the any Account of the Customer, and if the payment due and the amount available on the Account are in different currencies, the Bank itself can perform conversion at the commercial rate of exchange applicable at the Bank on the date of payment or the rate of exchange agreed with the Customer (if any), and write off also the conversion cost without acceptance from the Account, and channel the converted amount to cover the appropriate payments. During the period of Force Majeure, the Bank shall not be liable for complete or partial nonfulfillment or improper fulfillment of its obligations under the Agreement. In the event of Force Majeure, the Parties shall be guided by ICC Uniform Rules. Any official communication between the Parties shall be in writing. The written notice intended to the Party may be delivered in person or sent by a courier (including an international courier) or through a post delivery (including by a registered letter). For urgency and subject to the following provisions, except by submitting to the Customer a claim for full performance of its obligations under the Agreement or notifying about the complete or partial termination of the Agreement, it is permissible to notify the other Party by email or other electronic means (including via mobile banking, internet banking) provided that upon request of the other Party, such notice shall also be provided in writing within a reasonable time. The notice shall be deemed to have been accepted by the addressee on the day of its receipt if the receipt of the notice is confirmed by the addressee (including by electronic document, receipt, other appropriate means of notification, etc.). If the receipt of the notice is not confirmed by the addressee, any such notice shall be deemed to have been sent and received accordingly: In case of sending a written message by a courier or registered mail - on the day of confirmation of delivery; In case of sending by email and/or other electronic means - on the second Banking Day after the date of sending; Notice shall be deemed to have been received even if the notice is returned to the notifying Party due to the absence of the addressee of the notification on the sent address/contact data, the addressee refuses to receive the notice or avoids receiving it. The Parties will communicate according to the addresses/contact details specified in the Agreement (or any other address/contact information that one Party will provide in writing to the other). The Party is obliged to notify the other Party on the change of the above address or any of their data in a timely manner, otherwise the communication (notification etc.) carried out to the address indicated by the Party shall be deemed to have been duly performed.
Appointment and Authorization Each Lender hereby designates and appoints the Agent and the Collateral Agent (collectively, the “Appointed Agents”) as its agents under this Agreement and the other Loan Documents and each Lender hereby irrevocably authorizes each Appointed Agent, in its respective capacity, to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Each Appointed Agent agrees to act as such on the express conditions contained in this Article XIII. The provisions of this Article XIII (other than Sections 13.9, 13.10(a) and 13.10(b)) are solely for the benefit of the Appointed Agents and the Lenders, and the Borrower shall have no rights as third party beneficiaries of any of the provisions contained herein. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, each Appointed Agent shall not have any duties or responsibilities, except those expressly set forth herein, nor shall any Appointed Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Appointed Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to any Appointed Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Except as expressly otherwise provided in this Agreement, each Appointed Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights or taking or refraining from taking any actions which such Appointed Agent is expressly entitled to take or assert under this Agreement and the other Loan Documents, including (a) the determination of the applicability of ineligibility criteria with respect to the calculation of the Borrowing Base, (b) the making of Agent Advances pursuant to Section 2.4(g) and (c) the exercise of remedies pursuant to Section 10.2, and any action so taken or not taken shall be deemed consented to by the Lenders.
Appointment and Authorization of Agents (a) Each Lender hereby irrevocably appoints, designates and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained in this Agreement or in any other Loan Document, the Administrative Agent shall have no duties or responsibilities, except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or Participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in the other Loan Documents with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Notwithstanding any provision contained in this Agreement providing for any action in the Administrative Agent’s reasonable discretion or approval of any action or matter in the Administrative Agent’s reasonable satisfaction, the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law. The Administrative Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower, any other Loan Party or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any other Agent-Related Person in any capacity. The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
(b) The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of (and to hold any security interest, charge or other Lien created by the Collateral Documents for and on behalf of or on trust for) such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” (and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.02 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX (including Section 9.07, as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
