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

Appointment of Depositary, Powers and Immunities. The Administrative Agent, the Collateral Agent, the Borrower Entities, and the Lenders, hereby appoint the Depositary to act as the 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 duties or responsibilities except those expressly set forth in this 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 applicable party shall direct 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 shall be responsible to the Secured Beneficiaries for any recitals, statements, representations or warranties made by any Borrower Entity contained in this Agreement or any other Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Beneficiary under any Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document or any other document referred to or provided for herein or therein or for any failure by any Borrower Entity to perform its obligations hereunder or thereunder. The Depositary shall not be required to ascertain or inquire as to the performance by any Borrower Entity of any of their obligations under any Financing Document or any other document or 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. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in 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 conclusively proved or established by a certificate of an Responsible Officer of Borrower or the Collateral Agent, if appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from 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, attorneys, custodians or nominees appointed with due care. 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 any of its officer’s, director’s, employee’s or agent’s bad faith, gross negligence or willful misconduct.

Appointment of Depositary, Powers and Immunities. The Administrative Agent, Each of each Loan Party and the Collateral Agent, Agent (on behalf of the Borrower Entities, and the Lenders, Secured Parties) hereby appoint appoints the Depositary to act as the agent of the Collateral Agent, for the benefit of the Secured Beneficiaries 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 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 applicable party 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. 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 Affiliates, agents or officers shall be responsible to the Secured Beneficiaries Parties for any recitals, statements, representations or warranties made by any Borrower Entity contained Loan Party in this Agreement or any other Financing Transaction Document or in any certificate or other document referred to or provided for in, or received by any Secured Beneficiary under Party under, this Agreement or any Financing Document other Transaction Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Transaction Document or any other document referred to or provided for herein or therein or for any failure by any Borrower Entity Loan Party to perform its obligations hereunder or thereunder. The Depositary shall not be (a) required to ascertain initiate or inquire as to the performance by conduct any Borrower Entity of any of their obligations litigation or collection proceeding hereunder or under any Financing other Collateral Document or (b) responsible for any action taken or omitted to be taken by it hereunder or in connection with any other document Collateral Document (except for its own gross negligence or agreement contemplated hereby or therebywillful 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. Whenever in the administration of this Agreement writing believed by the Depositary shall deem it necessary or desirable that a factual matter be proved or established in 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 good faith to be conclusively proved genuine and to have been signed or established sent by a certificate or on behalf of an Responsible Officer of Borrower 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 Collateral Agent, if appropriateinformation 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 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, attorneyslegal 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 any of its officer’s, director’s, employee’s or agent’s bad faith, their gross negligence or willful misconductmisconduct 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. The Administrative AgentIssuer, the Guarantors and the Collateral Agent, on behalf of the Borrower Entities, and the LendersSecured Parties, hereby appoint the Depositary to act as the its 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 Depositary Agreement, together with such other powers as are reasonably incidental thereto. The Depositary shall not have any duties or responsibilities except those expressly set forth in this Depositary 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 applicable party Collateral Agent shall direct 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 lawApplicable Law. Neither the Depositary nor any of its Affiliates shall be responsible to the Secured Beneficiaries Parties for any recitals, statements, representations or warranties made by the Issuer or any Borrower Entity Guarantor contained in this Depositary Agreement or any other Project Document or Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Beneficiary under Party under, the Indenture, this Depositary Agreement or any other Project Document or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Depositary Agreement or any other Financing Project Document or any other document referred to or provided for herein or therein or for any failure by the Issuer or any Borrower Entity 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 Borrower Entity Guarantor of any of their its obligations under the Indenture, any other Financing Document 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 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) 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. 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 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 conclusively proved or established by a certificate of an a Responsible Officer of Borrower the Issuer or any Guarantor or the Collateral Agent, if appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Depositary Agreement from the Administrative Agent, the Collateral Agent, Borrower the 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, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or gross negligence on the part of, or for the supervision of, any 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 any of its officer’s, director’s, employee’s or agent’s bad faith, gross 's 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 shall not be deemed to have knowledge of a Project Acceleration Event unless a Responsible Officer of the Depositary shall have received written notice thereof.

Appointment of Depositary, Powers and Immunities. The Administrative Agent, the Collateral Agent, the Borrower EntitiesBorrower, the Subsidiary Paries, and the Lenders, hereby appoint the Depositary to act as the 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 duties or responsibilities except those expressly set forth in this 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 applicable party shall direct 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 shall be responsible to the Secured Beneficiaries for any recitals, statements, representations or warranties made by Borrower or any Borrower Entity Subsidiary Party contained in this Agreement or any other Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Beneficiary under any Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Document or any other document referred to or provided for herein or therein or for any failure by Borrower or any Borrower Entity Subsidiary Party to perform its obligations hereunder or thereunder. The Depositary shall not be required to ascertain or inquire as to the performance by Borrower or any Borrower Entity Subsidiary Party of any of their obligations under any Financing Document or any other document or 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. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in 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 conclusively proved or established by a certificate of an Responsible Officer of Borrower or the Collateral Agent, if appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from 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, attorneys, custodians or nominees appointed with due care. 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 any of its officer’s, director’s, employee’s or agent’s bad faith, gross negligence or willful misconduct.

Appointment of Depositary, Powers and Immunities. The Administrative Agent, Borrower and the Offshore Collateral Agent, at the Borrower Entities, and direction of the LendersAdministrative Agent acting on behalf of the Secured Parties, hereby appoint the Depositary to act as the their 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 duties or responsibilities except those expressly set forth in this 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 applicable party Offshore Collateral Agent, Administrative Agent or the Borrower shall direct 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 lawGovernment Rule. Neither the Depositary nor any of its Affiliates shall be responsible to the Secured Beneficiaries Parties for any recitals, statements, representations or warranties made by any the Borrower Entity and contained in this Agreement or any other Security Document or Financing Document or in any certificate or other document referred to or provided for in, or received by any Secured Beneficiary Lender under this Agreement or any other Security Document or Financing Document for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Financing Security Document or any other document referred to or provided for herein or therein or for any failure by any the Borrower Entity to perform its obligations hereunder or thereunder. The Depositary shall not be required to ascertain or inquire as to the performance by any the Borrower Entity of any of their its obligations under any Financing Document 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 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 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. Whenever in the administration of this Agreement the Depositary shall deem it necessary or desirable that a factual matter be proved or established in 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 conclusively proved or established by an officer’s certificate of an Authorized Officer of the Borrower or a certificate of an Responsible Officer a senior officer of Borrower the Administrative Agent or the Offshore Collateral Agent, if appropriate. The Depositary shall have the right at any time to seek instructions concerning the administration of this Agreement from the Offshore Collateral Agent, 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 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, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or gross negligence on the part of, or for the supervision of, any 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 any of its officer’s, director’s, employee’s or agent’s bad faith, 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. The Depositary shall not be deemed to have knowledge of a Default or an Event of Default unless the Depositary shall have received written notice thereof 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 Persons employed by the Depositary in accordance herewith to act hereunder.