Common use of Agents and Representatives Clause in Contracts

Agents and Representatives. The remedies provided in Section 7 herein shall only be exercised or otherwise enforced with the written consent of Secured Parties holding at least 66-2/3% of the outstanding aggregate principal amount of the Investment Amount under the Purchase Agreement (“Majority Secured Parties”). The Majority Secured Parties may appoint an agent (the “Agent”) that, at the direction of Majority Secured Parties, shall have the right to exercise any right or remedy of the Secured Parties, on behalf of all Secured Parties, under this Agreement, including, without limitation, all rights and remedies of a secured party under the Code. If an Agent is so appointed: (a) At the direction of the Majority Secured Parties, the Agent shall proceed with the enforcement of the Secured Parties' rights against the Collateral for the benefit of the Secured Parties. Any repossession, sale or distribution of proceeds of Collateral shall be accomplished as required by this Agreement, the other Transaction Documents and applicable law. The Agent is authorized to exercise all rights and remedies of the Secured Parties under the Transaction Documents, provided that, absent exigent circumstances where action is determined by the Agent to be necessary to protect Collateral, the Agent shall not proceed to enforce the Secured Parties' rights and remedies against the Collateral or the Pledgor by foreclosure, judicial action or the like (“Enforcement Action”), unless and until directed to do so by the Majority Secured Parties. Unless the Agent shall request further guidance or consents, any direction by the Majority Secured Parties to begin Enforcement Action may merely state that the Agent shall begin enforcement, and need not specify the manner in which enforcement should proceed. Once the Agent receives an enforcement direction from the Majority Secured Parties, all decisions as to how to proceed to enforce the Secured Parties' rights and remedies, including, without limitation, the methods and timing of proceeding, may be made by the Agent in its good faith business judgment, with such consultation with the Secured Parties as the Agent in its sole discretion deems reasonable under the circumstances. In the event of one or more foreclosure sales, the Agent shall have the right to bid in the claim of each Secured Party on behalf of each Secured Party in respect of its investment in the Company. (b) Unless consented to by all of the Secured Parties, no Secured Party shall, except through the Agent, collect, take possession of, foreclose upon, or exercise any rights or remedies with respect to the Collateral or the Pledgor, judicially or non-judicially, in order to satisfy or collect any Secured Obligations or attempt to do any of the foregoing. (c) If the Collateral is acquired by the Agent by foreclosure sale or otherwise, at the option of the Agent, title may be taken in the name of the Agent or in the name of a corporation affiliated with the Agent or other nominee designated by the Agent, in any case, for the ratable benefit of the Secured Parties subject to the terms of this Agreement. Although the Agent shall consult with the Secured Parties as to the general operation and disposition of any Collateral for which title has been acquired through foreclosure or otherwise, the consent of the Secured Parties shall not be required for matters and decisions by the Agent relating to the management, operation, or repair of the Collateral so acquired. (d) The costs of repossession, sale, possession and management (including, without limitation, any costs of holding any Collateral the title to which is acquired by the Agent on behalf of the Secured Parties), and distribution pursuant to Section 7 herein shall be an obligation of the Pledgor, and to the extent the Pledgor does not cover such costs, shall be borne Pro Rata by the Secured Parties until repaid by the Pledgor. Each Secured Party shall reimburse the Agent for its Pro Rata share of all such costs promptly upon demand. Without limiting any obligations of any Secured Party to reimburse the Agent as contained herein, in the event of the Pledgor’s failure to pay taxes, assessments, insurance premiums, claims against the Collateral or any other amount required to be paid by the Pledgor pursuant to any Transaction Documents, the Agent may (but shall not be obligated to) advance amounts necessary to pay the same, and each Secured Party agrees to reimburse the Agent promptly upon demand for its Pro Rata share of any such payments, provided Agent has advanced such amounts with the approval of the Majority Secured Parties. “Pro Rata” means, as to any Secured Party at any time, (a) with respect to the Secured Obligations, the percentage equivalent at such time of (i) such Secured Party's Investment Amount, divided by (ii) the combined aggregate Investment Amount of all Secured Parties.

Agents and Representatives. The remedies provided in Section 7 herein shall only be exercised or otherwise enforced with the written consent of Secured Parties holding at least 66-2/3% of the outstanding aggregate principal amount of the Investment Amount under the Purchase Agreement Guaranteed Obligations (“Majority Secured Parties”). The Majority Secured Parties may appoint an agent (the “Agent”) that, at the direction of Majority Secured Parties, shall have the right to exercise any right or remedy of the Secured Parties, on behalf of all Secured Parties, under this Agreement, including, without limitation, all rights and remedies of a secured party under the Code. If an Agent is so appointed: (a) At the direction of the Majority Secured Parties, the Agent shall proceed with the enforcement of the Secured Parties' rights against the Collateral for the benefit of the Secured PartiesParties under the Notes. Any repossession, sale or distribution of proceeds of Collateral shall be accomplished as required by this Agreement, the other Transaction Documents and applicable law. The Agent is authorized to exercise all rights and remedies of the Secured Parties under the Transaction Documents, provided that, absent exigent circumstances where action is determined by the Agent to be necessary to protect Collateral, the Agent shall not proceed to enforce the Secured Parties' rights and remedies against the Collateral or the Pledgor by foreclosure, judicial action or the like (“Enforcement Action”), unless and until directed to do so by the Majority Secured Parties. Unless the Agent shall request further guidance or consents, any direction by the Majority Secured Parties to begin Enforcement Action may merely state that the Agent shall begin enforcement, and need not specify the manner in which enforcement should proceed. Once the Agent receives an enforcement direction from the Majority Secured Parties, all decisions as to how to proceed to enforce the Secured Parties' rights and remedies, including, without limitation, the methods and timing of proceeding, may be made by the Agent in its good faith business judgment, with such consultation with the Secured Parties as the Agent in its sole discretion deems reasonable under the circumstances. In the event of one or more foreclosure sales, the Agent shall have the right to bid in the claim of each Secured Party on behalf of each Secured Party in respect of its investment in the Companyrespective Note. (b) Unless consented to by all of the Secured Parties, no Secured Party shall, except through the Agent, collect, take possession of, foreclose upon, or exercise any rights or remedies with respect to the Collateral or the Pledgor, judicially or non-judicially, in order to satisfy or collect any Secured Guaranteed Obligations or attempt to do any of the foregoing. (c) If the Collateral is acquired by the Agent by foreclosure sale or otherwise, at the option of the Agent, title may be taken in the name of the Agent or in the name of a corporation affiliated with the Agent or other nominee designated by the Agent, in any case, for the ratable benefit of the Secured Parties subject to the terms of this Agreement. Although the Agent shall consult with the Secured Parties as to the general operation and disposition of any Collateral for which title has been acquired through foreclosure or otherwise, the consent of the Secured Parties shall not be required for matters and decisions by the Agent relating to the management, operation, or repair of the Collateral so acquired. (d) The costs of repossession, sale, possession and management (including, without limitation, any costs of holding any Collateral the title to which is acquired by the Agent on behalf of the Secured Parties), and distribution pursuant to Section 7 herein shall be an obligation of the Pledgor, and to the extent the Pledgor does not cover such costs, shall be borne Pro Rata by the Secured Parties until repaid by the Pledgor. Each Secured Party shall reimburse the Agent for its Pro Rata share of all such costs promptly upon demand. Without limiting any obligations of any Secured Party to reimburse the Agent as contained herein, in the event of the Pledgor’s failure to pay taxes, assessments, insurance premiums, claims against the Collateral or any other amount required to be paid by the Pledgor pursuant to any Transaction Documents, the Agent may (but shall not be obligated to) advance amounts necessary to pay the same, and each Secured Party agrees to reimburse the Agent promptly upon demand for its Pro Rata share of any such payments, provided Agent has advanced such amounts with the approval of the Majority Secured Parties. “Pro Rata” means, as to any Secured Party at any time, (a) with respect to the Secured Obligations, the percentage equivalent at such time of (i) such Secured Party's Investment Amount, divided by (ii) the combined aggregate Investment Amount of all Secured Parties.