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

Appointment of Depositary, Powers and Immunities. Each of each Loan Party and the Collateral Agent (on behalf of the Secured Parties) hereby appoints the Depositary to act as the depositary bank hereunder, with such powers as are expressly delegated to the Depositary by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary shall not have any fiduciary duties, other duties or responsibilities except those expressly set forth in this Agreement, and no implied duties or covenants shall be read against the Depositary. Without limiting the generality of the foregoing, the Depositary shall take all actions as the Collateral Agent, the Administrative Agent or the Borrower, as applicable, shall direct in writing to it to perform in accordance with the express provisions of this Agreement. Neither the Depositary nor any of its Affiliates, agents or officers shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by any Loan Party in this Agreement or any other Transaction 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 Transaction Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document or any other document referred to or provided for herein or therein or for any failure by any Loan Party to perform its obligations hereunder or thereunder. The Depositary shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Collateral Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Collateral Document (except for its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction). Except as otherwise provided under this Agreement, the Depositary shall take action under this Agreement only as it shall be directed in writing believed by the Depositary in good faith to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons. The Depositary may rely on any such writing or instruction that purports to be so signed, and shall have no duty whatsoever to investigate or verify whether any such signature is genuine or authorized or whether the information therein is genuine or accurate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, the Administrative Agent, the Borrower or any court of competent jurisdiction. The Depositary 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 may execute or perform any duties hereunder either directly or by or through agents, legal counsel, custodians or nominees appointed with due care; provided that (i) the Depositary’s obligations under this Agreement shall remain unchanged, (ii) the Depositary shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the Depositary in connection with the Depositary’s rights and obligations under this Agreement. Neither the Depositary 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’s or their gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The Depositary shall not be deemed to have actual knowledge of any Event of Default unless the Depositary shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary in each of its capacities hereunder, and to each agent, custodian and other Person employed by the Depositary in accordance herewith to act hereunder.

Appointment of Depositary, Powers and Immunities. Each of each Loan Party The Borrower and the Offshore Collateral Agent, at the direction of the Administrative Agent (acting on behalf of the Secured Parties) , hereby appoints appoint the Depositary to act as the depositary bank their agent hereunder, with such powers as are expressly delegated to the Depositary by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary shall not have any fiduciary duties, other duties or responsibilities except those expressly set forth in this Agreement, Agreement and no implied duties or covenants shall be read against the Depositary. Without limiting the generality of the foregoing, the Depositary shall take all actions as the Offshore Collateral Agent, the Administrative Agent or the Borrower, as applicable, Borrower shall direct in writing to it to perform in accordance with the express provisions of this Agreement. Notwithstanding anything to the contrary contained herein, the Depositary shall not be required to take any action which is contrary to this Agreement or Government Rule. Neither the Depositary nor any of its Affiliates, agents or officers Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by any Loan Party the Borrower and contained in this Agreement or any other Transaction Security Document or Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under, Lender under this Agreement or any other Transaction Document, Security Document or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Security Document or any other document referred to or provided for herein or therein or for any failure by any Loan Party the Borrower to perform its obligations hereunder or thereunder. The Depositary shall not be required to ascertain or inquire as to the performance by the Borrower of any of its obligations under this Agreement or any other document or agreement contemplated hereby or thereby. The Depositary shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Collateral Security Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Collateral Document (except for its own gross negligence or willful misconduct as finally determined by the final judgment of a court of competent jurisdiction), no longer subject to appeal or review) or in connection with any other Security Document. Except as otherwise provided under this Agreement, the Depositary shall take action under this Agreement only as it shall be directed in writing believed by writing. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in good faith connection with the Depositary 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 genuine and to have been signed conclusively proved or sent established by or on behalf an officer’s certificate of an Authorized Officer of the proper Person Borrower or Persons. The Depositary may rely on any such writing a certificate of a senior officer of the Administrative Agent or instruction that purports to be so signedthe Offshore Collateral Agent, and shall have no duty whatsoever to investigate or verify whether any such signature is genuine or authorized or whether the information therein is genuine or accurateif appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from the Offshore Collateral Agent, the Administrative Agent, the Borrower or any court of competent jurisdiction. The Depositary 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 shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary was grossly negligent or acting with willful misconduct (as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review) in ascertaining the pertinent facts. The Depositary may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, legal counselattorneys, custodians or nominees appointed with due care; provided that (i) , and shall not be responsible for any willful misconduct or gross negligence on the Depositary’s obligations under this Agreement shall remain unchangedpart of, (ii) the Depositary shall remain solely responsible to the other parties hereto or for the performance of such obligations and (iii) the Borrowersupervision of, the Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the Depositary in connection with the Depositary’s rights and obligations under this Agreementany agent, attorney, custodian or nominee so appointed. Neither the Depositary 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’s or their own gross negligence or willful misconduct misconduct, as finally determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary shall not be deemed to have actual knowledge of any a Default or an Event of Default unless the Depositary shall have received written notice thereofthereof from the Offshore Collateral Agent. The rights, privileges, protections and benefits given to the Depositary, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary in each of its capacities hereunder, and to each agent, custodian and other Person Persons employed by the Depositary in accordance herewith to act hereunder.

Appointment of Depositary, Powers and Immunities. Each of each Loan Party The Administrative Agent, the Collateral Agent, the Borrower Entities, and the Collateral Agent (on behalf of the Secured Parties) Lenders, hereby appoints appoint the Depositary to act as the depositary bank agent of the Collateral Agent, for the benefit of the Secured Beneficiaries hereunder, with such powers as are expressly delegated to the Depositary by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Depositary shall not have any fiduciary duties, other duties or responsibilities except those expressly set forth in this Agreement, Agreement and no implied duties or covenants shall be read against the Depositary. The Depositary shall not be a trustee or fiduciary to any Secured Beneficiary. Without limiting the generality of the foregoing, the Depositary shall take all actions as the Collateral Agent, the Administrative Agent or the Borrower, as applicable, applicable party shall direct in writing to it to perform in accordance with the express provisions of this Agreement. Notwithstanding anything to the contrary contained herein, the Depositary shall not be required to take any action which is contrary to this Agreement or applicable law. Neither the Depositary nor any of its Affiliates, agents or officers Affiliates shall be responsible to the Secured Parties Beneficiaries for any recitals, statements, representations or warranties made by any Loan Party Borrower Entity contained in this Agreement or any other Transaction Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under, this Agreement or Beneficiary under any other Transaction Document, or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Financing Document or any other document referred to or provided for herein or therein or for any failure by any Loan Party Borrower Entity to perform its obligations hereunder or thereunder. The Depositary shall not be (a) required to initiate ascertain or conduct inquire as to the performance by any litigation or collection proceeding hereunder or Borrower Entity of any of their obligations under any other Collateral Financing Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Collateral Document (except for its own gross negligence document or willful misconduct as finally determined by a court of competent jurisdiction)agreement contemplated hereby or thereby. Except as otherwise provided under this Agreement, the Depositary shall take action under this Agreement only as it shall be directed in writing believed by writing. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in good faith connection with the Depositary taking, suffering to exist or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be genuine and to have been signed conclusively proved or sent established by a certificate of an Responsible Officer of Borrower or on behalf of the proper Person or Persons. The Depositary may rely on any such writing or instruction that purports to be so signedCollateral Agent, and shall have no duty whatsoever to investigate or verify whether any such signature is genuine or authorized or whether the information therein is genuine or accurateif appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, the Administrative Agent, the Collateral Agent, Borrower or any court of competent jurisdiction. The Depositary 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 may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, legal counselattorneys, custodians or nominees appointed with due care; provided that (i) the Depositary’s obligations under this Agreement shall remain unchanged, (ii) the Depositary shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the Depositary in connection with the Depositary’s rights and obligations under this Agreement. Neither the Depositary 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’s or their any of its officer’s, director’s, employee’s or agent’s bad faith, gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The Depositary shall not be deemed to have actual knowledge of any Event of Default unless the Depositary shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary in each of its capacities hereunder, and to each agent, custodian and other Person employed by the Depositary in accordance herewith to act hereundermisconduct.

Appointment of Depositary, Powers and Immunities. Each of each Loan Party The Issuer, the Guarantors and the Collateral Agent (Agent, on behalf of the Secured Parties) , hereby appoints appoint the Depositary to act as the depositary bank its agent hereunder, with such powers as are expressly delegated to the Depositary by the terms of this Depositary Agreement, together with such other powers as are reasonably incidental thereto. The Depositary shall not have any fiduciary duties, other duties or responsibilities except those expressly set forth in this Agreement, Depositary Agreement and no implied duties or covenants shall be read against the Depositary. Without limiting the generality of the foregoing, the Depositary shall take all actions as the Collateral Agent, the Administrative Agent or the Borrower, as applicable, shall direct in writing to it to perform in accordance with the express provisions of this Depositary Agreement. Notwithstanding anything to the contrary contained herein, the Depositary shall not be required to take any action which is contrary to this Depositary Agreement or Applicable Law. Neither the Depositary nor any of its Affiliates, agents or officers Affiliates shall be responsible to the Secured Parties for any recitals, statements, representations or warranties made by the Issuer or any Loan Party Guarantor contained in this Depositary Agreement or any other Transaction 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, the Indenture, this Depositary Agreement or any other Transaction Document, Project Document or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agreement or any other Transaction Project Document or any other document referred to or provided for herein or therein or for any failure by the Issuer or any Loan Party Guarantor to perform its obligations hereunder or thereunder. The Depositary shall not be required to ascertain or inquire as to the performance by the Issuer or any Guarantor of any of its obligations under the Indenture, any other Financing Document, this Depositary Agreement or any other document or agreement contemplated hereby or thereby. The Depositary shall not be (a) required to initiate or conduct any litigation or collection proceeding hereunder or under any other Collateral Security Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Collateral Document (except for its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction)misconduct) or in connection with any other Security Document. Except as otherwise provided under this Depositary Agreement, the Depositary shall take action under this Depositary Agreement only as it shall be directed in writing believed by writing. Whenever in the administration of this Depositary Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in good faith connection with the Depositary 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 genuine and to have been signed conclusively proved or sent established by or on behalf a certificate of a Responsible Officer of the proper Person Issuer or Persons. The Depositary may rely on any such writing Guarantor or instruction that purports to be so signedthe Collateral Agent, and shall have no duty whatsoever to investigate or verify whether any such signature is genuine or authorized or whether the information therein is genuine or accurateif appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Depositary Agreement from the Collateral Agent, the Administrative Agent, the Borrower Issuer or any Guarantor or any court of competent jurisdiction. The Depositary 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 shall not be liable for any error of judgment made in good faith by an officer or officers of the Depositary, unless it shall be conclusively determined by a court of competent jurisdiction that the Depositary was grossly negligent in ascertaining the pertinent facts. The Depositary may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, legal counselattorneys, custodians or nominees appointed with due care; provided that (i) , and shall not be responsible for any willful misconduct or gross negligence on the Depositary’s obligations under this Agreement shall remain unchangedpart of, (ii) the Depositary shall remain solely responsible to the other parties hereto or for the performance of such obligations and (iii) the Borrowersupervision of, the Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the Depositary in connection with the Depositary’s rights and obligations under this Agreementany agent, attorney, custodian or nominee so appointed. Neither the Depositary 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’s or their gross 's negligence or willful misconduct misconduct, as finally determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The Depositary shall not be deemed to have actual knowledge of any a Project Acceleration Event unless a Responsible Officer of Default unless the Depositary shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary in each of its capacities hereunder, and to each agent, custodian and other Person employed by the Depositary in accordance herewith to act hereunder.

Appointment of Depositary, Powers and Immunities. Each of each Loan Party The Administrative Agent, the Collateral Agent, the Borrower, the Subsidiary Paries, and the Collateral Agent (on behalf of the Secured Parties) Lenders, hereby appoints appoint the Depositary to act as the depositary bank agent of the Collateral Agent, for the benefit of the Secured Beneficiaries hereunder, with such powers as are expressly delegated to the Depositary by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission The Depositary shall not have any fiduciary duties, other duties or responsibilities except those expressly set forth in this Agreement, Agreement and no implied duties or covenants shall be read against the Depositary. The Depositary shall not be a trustee or fiduciary to any Secured Beneficiary. Without limiting the generality of the foregoing, the Depositary shall take all actions as the Collateral Agent, the Administrative Agent or the Borrower, as applicable, applicable party shall direct in writing to it to perform in accordance with the express provisions of this Agreement. Notwithstanding anything to the contrary contained herein, the Depositary shall not be required to take any action which is contrary to this Agreement or applicable law. Neither the Depositary nor any of its Affiliates, agents or officers Affiliates shall be responsible to the Secured Parties Beneficiaries for any recitals, statements, representations or warranties made by Borrower or any Loan Subsidiary Party contained in this Agreement or any other Transaction Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Party under, this Agreement or Beneficiary under any other Transaction Document, or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Financing Document or any other document referred to or provided for herein or therein or for any failure by Borrower or any Loan Subsidiary Party to perform its obligations hereunder or thereunder. The Depositary shall not be (a) required to initiate ascertain or conduct inquire as to the performance by Borrower or any litigation or collection proceeding hereunder or Subsidiary Party of any of their obligations under any other Collateral Financing Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other Collateral Document (except for its own gross negligence document or willful misconduct as finally determined by a court of competent jurisdiction)agreement contemplated hereby or thereby. Except as otherwise provided under this Agreement, the Depositary shall take action under this Agreement only as it shall be directed in writing believed by writing. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in good faith connection with the Depositary taking, suffering to exist or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be genuine and to have been signed conclusively proved or sent established by a certificate of an Responsible Officer of Borrower or on behalf of the proper Person or Persons. The Depositary may rely on any such writing or instruction that purports to be so signedCollateral Agent, and shall have no duty whatsoever to investigate or verify whether any such signature is genuine or authorized or whether the information therein is genuine or accurateif appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, the Administrative Agent, the Collateral Agent, Borrower or any court of competent jurisdiction. The Depositary 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 may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents, legal counselattorneys, custodians or nominees appointed with due care; provided that (i) the Depositary’s obligations under this Agreement shall remain unchanged, (ii) the Depositary shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Collateral Agent and the Administrative Agent shall continue to deal solely and directly with the Depositary in connection with the Depositary’s rights and obligations under this Agreement. Neither the Depositary 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’s or their any of its officer’s, director’s, employee’s or agent’s bad faith, gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The Depositary shall not be deemed to have actual knowledge of any Event of Default unless the Depositary shall have received written notice thereof. The rights, privileges, protections and benefits given to the Depositary, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Depositary in each of its capacities hereunder, and to each agent, custodian and other Person employed by the Depositary in accordance herewith to act hereundermisconduct.