Common use of Certain Additional Powers of Collateral Agent and Depositary Clause in Contracts

Certain Additional Powers of Collateral Agent and Depositary. Collateral Agent and, where appropriate, Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If the Company fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company upon demand. The Company hereby irrevocably appoints Collateral Agent as the Company’s attorney-in-fact, with full authority in the place and stead of the Company and in the name of the Company otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary or advisable to accomplish the purposes of this Agreement, including: (i) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto; (ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above; (iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and (iv) to perform the affirmative obligations of the Company hereunder. The Company hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of duties of a bank or a securities intermediary under the UCC, as applicable, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, the Company reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.

Certain Additional Powers of Collateral Agent and Depositary. Collateral Agent and, where appropriate, Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If the Company Borrower fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company Borrower upon demand. The Company Borrower hereby irrevocably appoints Collateral Agent as the CompanyBorrower’s attorney-in-fact, with full authority in the place and stead of the Company Borrower and in the name of the Company Borrower otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary or advisable to accomplish the purposes of this Agreement, including: (i) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto; (ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above; (iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and (iv) to perform the affirmative obligations of the Company Borrower hereunder. The Company Borrower hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of the duties of a bank securities intermediary or a securities intermediary bank, as applicable, under the UCC, as applicable, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent (for the avoidance of doubt, Administrative Agent is deemed by all parties to not have any possessory rights with respect to or control over any Account) is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, the Company Borrower reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company Borrower reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.

Certain Additional Powers of Collateral Agent and Depositary. (a) Collateral Agent and, where appropriate, Depositary shall will have the right, but not the obligation, to: : (ai) refuse any item for credit to deposit in any Account except as required by the terms of Account, which is not in accordance with this Agreement; and and (bii) refuse to honor any request for transfer on from any Account which is not consistent with this Agreement. If the Company fails to perform any agreement contained herein, Collateral Agent may . (but is not obligated tob) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company upon demand. The Company Borrower hereby irrevocably constitutes and appoints Collateral Agent as the CompanyBorrower’s true and lawful attorney-in-fact, with full authority in the place and stead of the Company Borrower and in the name of the Company otherwise Borrower from time to timetime in the discretion of Collateral Agent, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument which Collateral Agent may deem necessary or advisable to accomplish the purposes of this Agreement, including: (iA) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto; (iiB) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above; (iiiC) to file any claims or take any action or institute any proceedings which Collateral Agent may deem necessary or desirable for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iiiC), such rights shall be exercised in accordance with Section 4.73.7; and (ivD) to perform the affirmative obligations of the Company Borrower hereunder. The Company Borrower hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 3.2.2 is irrevocable and coupled with an interest. (c) With respect to the powers and rights granted to Collateral Agent in Article 5, notwithstanding the absence of any Default or Event of Default, Borrower hereby constitutes and appoints Collateral Agent as Borrower’s true and lawful attorney-in-fact with full authority in the place and stead of Borrower and in the name of Borrower to make the direct payments as specified and as permitted in such Article 5; and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from Borrower shall be necessary to warrant or permit Collateral Agent to direct such payments in accordance with the foregoing sentence and Article 5. (d) The powers conferred on Collateral Agent hereunder are solely to protect its interest, interest (on behalf of the Secured Parties, ) in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account or Permitted Investment in its possession or under its control, control (as the case may be), the performance of its respective obligations hereunder, hereunder or the performance of duties of a bank or a securities intermediary under the UCC, as applicableother Financing Documents, and the accounting for moneys actually received by it in accordance with the terms hereofhereunder, neither Depositary nor Collateral Agent shall have any no duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (Ai) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, Borrower reasonably requests in writing (and in accordance with the Company reasonably requests, but, notwithstanding terms of this Agreement) or otherwise acts in accordance with the foregoing, the failure requirements of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable careSection 3.6.3, and (Bii) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company Borrower reasonably requests in writing (and in accordance with the terms of this Agreement) at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 3.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion “control” (within the meaning of Section 9-104(a)(2) and control (3) or Section 8-106(d)(1) and (2), as applicable, of the UCC) over the Accounts.

Certain Additional Powers of Collateral Agent and Depositary. Collateral Agent and, where appropriate, Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If the Company Borrower fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company Borrower upon demand. The Company Borrower hereby irrevocably appoints Collateral Agent as the CompanyBorrower’s attorney-in-fact, with full authority in the place and stead of the Company Borrower and in the name of the Company Borrower otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary or advisable to accomplish the purposes of this Agreement, including: (i) to ask, demand, collect, xxx for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto; (ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above; (iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and (iv) to perform the affirmative obligations of the Company hereunderBorrowerhereunder. The Company Borrower hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of the duties of a bank securities intermediary or a securities intermediary bank, as applicable, under the UCC, as applicable, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent (for the avoidance of doubt, Administrative Agent is deemed by all parties to not have any possessory rights with respect to or control over any Account) is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, the Company Borrower reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company Borrower reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.