Common use of Appointment of Depositary Agent, Powers and Immunities Clause in Contracts

Appointment of Depositary Agent, Powers and Immunities. Holdings and the Collateral Agent, on behalf of the Secured Parties, hereby each appoint the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent shall direct it to perform in accordance with the express provisions of this Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Agreement or any law or rule of any Governmental Authority. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by Holdings contained in this Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document referred to or provided for herein or therein or for any failure by Holdings to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings or any other Person of any of its obligations under this Agreement or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Document. Except as otherwise provided under this Agreement, the Depositary Agent shall take action under this Agreement only as it shall be directed in writing. Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate of Holdings or a certificate of an officer of the Collateral Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, Holdings or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.

Appointment of Depositary Agent, Powers and Immunities. Holdings and the The Collateral Agent, on behalf of the Secured PartiesParties and the Funding Corporation under the Intercreditor Agreement, hereby each appoint appoints the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Depositary Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary AgentAgreement. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent shall direct it to perform in accordance with the express provisions of this Depositary Agreement or as the Collateral Agent may otherwise direct it to perform in accordance with the provisions of this Depositary Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Depositary Agreement or any law or rule of any Governmental Authorityapplicable law. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the any Secured Parties Party for any recitals, statements, representations or warranties made by Holdings the Funding Corporation or the Guarantors contained in this Depositary Agreement or any other Loan Transaction Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under under, the Indenture, this Depositary Agreement or any other Loan Transaction Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agreement or any other Transaction Document or any other document referred to or provided for herein or therein or for any failure by Holdings the Funding Corporation or any Guarantor to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings the Funding Corporation or any other Person the Guarantors of any of its obligations under the Indenture, this Agreement Depositary Agreement, any other Financing Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Security Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Security Document. Except as otherwise provided under this Depositary Agreement, the Depositary Agent shall take action under this Depositary Agreement only as it shall be directed in writingwriting by the Collateral Agent. Whenever in the administration of this Depositary Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate of Holdings or a certificate of an officer any Authorized Representative of the Funding Corporation or the Guarantors, or the Collateral Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Depositary Agreement from the Collateral Agent, Holdings Agent or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance perfor xxxxx of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.

Appointment of Depositary Agent, Powers and Immunities. Holdings and the Collateral Agent, The Trustee on behalf of the Secured Parties, holders of the Notes hereby each appoint appoints the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Agreement, Depositary Agreement together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary AgentAgreement. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent Trustee or the Initial Purchaser shall direct it to perform in accordance with the express provisions of this Depositary Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Depositary Agreement or any law or rule of any Governmental Authorityapplicable law. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties Trustee or the Holders for any recitals, statements, representations or warranties made by Holdings the Company contained in this Depositary Agreement or any other Loan Document or in any certificate or other document referred to or provided for in, or received by any Secured Party the Depositary Agent or the Trustee, as applicable, under this Depositary Agreement or any other Loan Document the Indenture, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agreement or any other document referred to or provided for herein or therein or for any failure by Holdings the Company to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings or any other Person the Company of any of its obligations under the Indenture, this Depositary Agreement or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Document. Except as otherwise provided under this Depositary Agreement, the Depositary Agent shall take action under this Depositary Agreement only as it shall be directed in writingwriting by the Trustee. Whenever in the administration of this Depositary Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate of Holdings Authorization of the Company or a certificate of an officer of the Collateral AgentTrustee's certificate, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Depositary Agreement from the Collateral Agent, Holdings Trustee or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.

Appointment of Depositary Agent, Powers and Immunities. Holdings The Company and the Collateral AgentTrustee, on behalf of the Secured Parties, hereby each appoint the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary Agent. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent Trustee shall direct it to perform in accordance with the express provisions of this Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Agreement or any law or rule of any Governmental AuthorityGovernment Rules. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by Holdings the Company contained in this Agreement or any other Loan Project Document or Secured Debt Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under this Agreement or any other Loan Project Document or Secured Debt Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agent Agreement or any other Project Document or any other document referred to or provided for herein or therein or for any failure by Holdings the Company to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings the Company or any other Person of any of its obligations under this Agreement or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Secured Debt Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Secured Debt Document. Except as otherwise provided under this Agreement, the Depositary Agent shall take action under this Agreement only as it shall be directed in writing. Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial an Officer’s Certificate of Holdings the Company or a certificate of an officer of the Collateral AgentTrustee, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral AgentTrustee, Holdings the Company or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgmentjudgment made in good faith by an officer or officers of the Depositary Agent, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent Trustee in accordance herewith to act hereunder.

Appointment of Depositary Agent, Powers and Immunities. Holdings and the The Collateral Agent, on behalf of the Secured PartiesParties under the Intercreditor Agreement, hereby each appoint irrevocably appoints and authorizes the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Depositary Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read against the Depositary AgentAgreement. Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent shall direct it to perform in accordance with the express provisions of this Depositary Agreement or as the Collateral Agent may otherwise direct it to perform in accordance with the provisions of this Depositary Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Depositary Agreement or any law or rule of any Governmental Authorityapplicable law. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the any Secured Parties Party for any recitals, statements, representations or warranties made by Holdings the Partnership or the Company contained in this Depositary Agreement or any other Loan Project Document or Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under under, the Indenture, this Depositary Agreement or any other Loan Project Document or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agreement or any other Project Document or any other document referred to or provided for herein or therein or for any failure by Holdings the Partnership or the Company to perform its their respective obligations hereunder or thereunder. The , the Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings the Partnership or the Company of any of their respective obligations under the Indenture, any other Financing Document, this Depositary Agreement or any other Person of any of its obligations under this Agreement Project Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Collateral Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Collateral Document. Except as otherwise provided under this Depositary Agreement, the Depositary Agent shall take action under this Depositary Agreement only as it shall be directed in writingwriting by the Collateral Agent. Whenever in the administration of this Depositary Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate of Holdings or a certificate of an officer any Authorized Representative of the Partnership or the Company, as the case may be, or the Collateral Agent, if appropriate. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Depositary Agreement from the Collateral Agent, Holdings Agent or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.

Appointment of Depositary Agent, Powers and Immunities. Holdings (a) Xxxxxxxx, Administrative Agent (on behalf of the Lenders and the LC Issuers) and Collateral Agent, Agent (on behalf of the Secured Parties) hereby appoint and authorize Wilmington Trust, hereby each appoint the Depositary Agent National Association to act as its agent the depositary bank hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall neither be responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document other than this Agreement and such other Loan Documents to which it is a party, whether or not an original or a copy of such agreement has been provided to Depositary Agent. Depositary Agent shall not have any duties or responsibilities except those expressly set forth in this Agreement and no implied duties or covenants shall be read inferred against the Depositary Agent. Without limiting Subject to the generality of the foregoingfollowing in this Section 4.1, the Depositary Agent shall take all actions as the Collateral Agent, Administrative Agent or Borrower, as applicable, shall direct it to perform in accordance with the express provisions of this Agreement. The Neither Depositary Agent nor any Agent shall have any fiduciary relationship with any Person arising as a result of this Agreement. Without limiting the generality of the foregoing, Depositary Agent shall take all actions as Collateral Agent, Administrative Agent or Borrower shall direct it to perform in accordance with the express provisions of this Agreement if and to the extent that such directions are in writing (including pursuant to a Withdrawal Certificate or Construction Requisition) and signed by Persons authorized to take action pursuant to incumbency certificates on file with Depositary Agent’s duties , and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by Depositary Agent in accordance with such written direction. All notices, instructions, directions, confirmations, consents, approvals, waivers or requests given hereunder are administrative only and it may, but to Depositary Agent or any other party hereto shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunderwriting. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Agreement Agreement, the other Loan Documents or any law or rule of any Governmental Authority. applicable law. (b) Neither the Depositary Agent nor any of its Affiliates shall be responsible to the other Secured Parties for any recitals, statements, representations or warranties made by Holdings contained Borrower in this Agreement or any other Loan Operative Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under under, this Agreement or any other Loan Document Operative Document, or for the value, validity, effectiveness, genuineness, enforceability enforceability, perfection of the security interests granted herein or therein or sufficiency of this Agreement or any other Operative Document or any other document referred to or provided for herein or therein or for any failure by Holdings of Borrower to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings or any other Person Borrower of any of its obligations under this Agreement Agreement, any other Operative Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall have no duty to know or inquire as to the performance or nonperformance of any provision of any other agreement instrument, or document other than this Agreement. Depositary Agent shall have no responsibility or liability in connection with the filing of financing statements or continuation statements nor for the perfection of any security interest under this Agreement or any other Loan Document. (c) Depositary Agent shall not be (ai) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Document or (bii) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Loan Document (except for its own gross negligence or willful misconduct, as determined by the in a final non-appealable judgment of a court of competent jurisdiction). Unless otherwise expressly provided herein, no longer subject to appeal or review) or in connection with any other Loan Document. Except as otherwise provided under this Agreement, the Depositary Agent shall take action under this Agreement only as it shall be directed in writingwriting (including pursuant to a Withdrawal Certificate or Construction Requisition) by Borrower, Administrative Agent or Collateral Agent (as applicable) believed by Depositary Agent in good faith to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons. Whenever in the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual or legal matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate certificate of Holdings a Responsible Officer of Borrower or a certificate of an a senior officer of the Collateral Agent or Administrative Agent, if appropriate, or from a legal opinion from counsel to Borrower. The Depositary Agent shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, Holdings Administrative Agent, Borrower or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. Neither Depositary Agent nor any of its Affiliates nor its or their officers, directors, employees or agents shall be liable to any Person for any action taken or omitted under this Agreement or under the other Loan Documents, or in connection therewith, except to the extent caused by the gross negligence, or willful misconduct of the Depositary Agent, as finally determined in a non-appealable judgment by a court of competent jurisdiction. The permissive rights of Depositary Agent to do things enumerated in this Agreement shall not be construed as a duty and, with respect to such permissive rights, Depositary Agent shall not be liable answerable for any error of judgmentother than its gross negligence or willful misconduct, unless it shall be conclusively as finally determined in a non-appealable judgment by a court of competent jurisdiction that jurisdiction. (d) If any conflict, disagreement or dispute arises between, among, or involving any of the parties hereto concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Agreement, or Depositary Agent was grossly negligent is in doubt as to the action to be taken hereunder, Depositary Agent may, at its option, after sending written notice of the same to Collateral Agent, Administrative Agent and Xxxxxxxx, refuse to act until such time as it (a) receives a final non-appealable order of a court of competent jurisdiction directing delivery of the Account Collateral or acting with willful misconduct (b) receives a written instruction, executed by each of the parties involved in ascertaining such disagreement or dispute, in a form reasonably acceptable to Depositary Agent, directing delivery of the pertinent factsAccount Collateral. The Depositary Agent will be entitled to act on any such written instruction or final, non-appealable order of a court of competent jurisdiction without further question, inquiry or consent. Depositary Agent may file an interpleader action in a state or federal court, and upon the filing thereof, Depositary Agent will be relieved of all liability as to the Account Collateral and will be entitled to recover reasonable and documented out-of-pocket attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action. (e) Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneyslegal counsel, custodians or nominees appointed with due care; provided that (i) Depositary Agent’s obligations under this Agreement and the other Loan Documents shall remain unchanged, and (ii) Depositary Agent shall remain solely responsible to the other parties hereto for the performance of such obligations (provided that the Depositary Agent shall not be responsible liable for any negligence or misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian of an agent or nominee so appointed. appointed with due care) and (iii) Borrower, the Independent Engineer, Collateral Agent and Administrative Agent shall continue to deal solely and directly with Depositary Agent in connection with Depositary Agent’s rights and obligations under this Agreement and the other Loan Documents. (f) Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith therewith, or errors in judgment made, in good faith, except to the extent caused by the Depositary Agent’s or such Person’s gross negligence or willful misconduct, as determined by the in a final non-appealable judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an any Event of Default or Trigger Event unless the a Trust Officer of Depositary Agent shall have received written notice thereofthereof as provided herein. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, including its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons Person employed by the Collateral Depositary Agent in accordance herewith to act hereunder. (g) Depositary Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any event beyond the control of this Agreement, including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, pandemics, epidemics, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility. (h) In no event shall the Depositary Agent be responsible or liable for special, indirect, punitive, incidental or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Depositary Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

Appointment of Depositary Agent, Powers and Immunities. Holdings and The Collateral Agent (acting on instructions of the Collateral Administrative Agent, ) on behalf of the Secured Parties, Parties hereby each appoint irrevocably appoints and authorizes the Depositary Agent to act as its agent hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Account Agreement, together with such other powers as are reasonably incidental thereto. Each Borrower hereby acknowledges the appointment of the Depositary Agent to act as the agent for the Secured Parties hereunder, with such powers as are expressly delegated to the Depositary Agent by the terms of this Account Agreement, together with such other powers as are reasonably incidental thereto. The Depositary Agent shall not have any duties or responsibilities to any Person except those expressly set forth in this Account Agreement and shall not have any fiduciary relationship with any other Secured Party (and no implied duties covenants, functions or covenants responsibilities shall be read into this Account Agreement or otherwise exist against the Depositary Agent). Without limiting the generality of the foregoing, the Depositary Agent shall take all actions as the Collateral Agent or the Administrative Agent shall direct it to perform take in accordance with the express provisions of this Account Agreement. The Depositary Agent’s duties hereunder are administrative only and it may, but shall not be required under any circumstances to, exercise discretion in the performance of its duties hereunder. Notwithstanding anything to the contrary contained herein, the Depositary Agent shall not be required to take any action which is contrary to this Account Agreement or any law applicable Law or rule of any Governmental Authoritywhich would require the Depositary Agent to advance or extend its own funds or take action for which it is not indemnified to its satisfaction. Neither the Depositary Agent nor any of its Affiliates shall be responsible to the any other Secured Parties Party for any recitals, statements, representations or warranties made by Holdings any Borrower or the Collateral Agent contained in this Account Agreement or any other Loan Transaction Document or in any certificate or other document referred to or provided for in, or received by any other Secured Party under under, the Credit Agreement, this Account Agreement or any other Loan Document Transaction Document, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Account Agreement or any other Transaction Document or any other document referred to or provided for herein or therein or for any failure by Holdings any Borrower to perform its obligations hereunder or thereunder. The Depositary Agent shall not be required to ascertain or inquire as to the performance by Holdings or any other Person Borrower of any of its obligations under this the Credit Agreement or any other Transaction Document or any other document or agreement contemplated hereby or thereby. The Depositary Agent shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Loan Security Document or (b) responsible for any action taken or omitted to be taken by it hereunder (except for its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) or in connection with any other Loan Security Document; provided that the Depositary Agent shall be liable for its grossly negligent or bad faith misapplication of monies held by it in accordance with the terms of this Account Agreement or any other Security Document to which it is a party. Except as otherwise provided under expressly set forth in this Account Agreement, the Depositary Agent shall take action under this Account Agreement only as it shall be directed in writing. Whenever in writing by the administration of this Agreement the Depositary Agent shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Agent taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a Financial Officer’s Certificate of Holdings or a certificate of an officer of the Collateral Administrative Agent, if appropriate. The Depositary Agent shall have the right at any time to reasonably seek instructions concerning the administration of this Account Agreement from the Collateral Agent, Holdings the Administrative Agent, legal counsel or any court of competent jurisdiction. The Depositary Agent shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Agent shall not be liable for any error of judgment, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary Agent was grossly negligent or acting with willful misconduct in ascertaining the pertinent facts. The Depositary Agent may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, any agent, attorney, custodian or nominee so appointed. Neither the Depositary Agent nor any of its officers, directors, employees or agents shall be liable for any action taken or omitted under this Agreement or in connection therewith except to the extent caused by the Depositary Agent’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary Agent shall not be deemed to have knowledge of an Event of Default unless the Depositary Agent shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary Agent, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary Agent in each of its capacities hereunder, and to each agent, custodian and other Persons employed by the Collateral Agent in accordance herewith to act hereunder.