Common use of Duties of Collateral Agent Clause in Contracts

Duties of Collateral Agent. (a) The Collateral Agent is hereby appointed by the Borrower as the Collateral Agent for the Secured Parties. The Collateral Agent shall only act at the direction of the Trustee, subject to its rights herein. The Collateral Agent shall be merely an agent and have no fiduciary duties to the Trustee, the Noteholders or the CVR Holders. The Collateral Agent may refuse to follow any direction that conflicts with law or this Agreement or that may result in personal liability to the Collateral Agent. Prior to taking any action under this Agreement, the Collateral Agent will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance herewith. (i) The duties of the Collateral Agent shall be determined solely by the express provisions of this Agreement and the Collateral Agent need perform only those duties that are specifically set forth in this Agreement and no others, and no implied covenants or obligations shall be read into this Agreement or the Security Documents against the Collateral Agent. (ii) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Agent. (iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts. (iv) The Collateral Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to this Agreement. (b) No provision of this Agreement or any other Finance Document shall require the Collateral Agent to expend or risk its own funds or incur any liability in the performance of any of its duties hereunder. (c) The Collateral Agent shall not be liable for interest on any money received by it or to make any investments. Money held by the Collateral Agent need not be segregated from other funds. (d) The Collateral Agent shall not be deemed to have notice or any knowledge of any matter (including without limitation Events of Default) unless a Responsible Officer of the Collateral Agent, has received written notice thereof (addressed as provided in Section 6.1), and such notice clearly references the Notes or this Agreement. (e) The rights, privileges and protections of the Collateral Agent set forth in this Article V shall apply equally in respect of the any other document to which the Collateral Agent is a party.

Duties of Collateral Agent. (a) All rights, privileges, protections, immunities, exemptions from liability and indemnities contained in this Indenture in favor of the Trustee, including, without limitation Article Seven of this Indenture shall apply to U.S. Bank National Association in its capacity as Collateral Agent under the Indenture, the Pledge Agreement, the Escrow Agreement and each of the other Collateral Documents to which it is a party as if such rights, privileges, protections, immunities, exemptions from liability and indemnities were specifically set out in each such document, provided that in Section 7.07 of the Indenture, any references to negligence shall deemed to be gross negligence when construing these provisions in favor of the Collateral Agent. (b) The Collateral Agent is hereby appointed by Agent’s sole duty with respect to the Borrower custody, safekeeping and physical preservation of the Collateral in its possession, shall be to deal with it in the same manner as the Collateral Agent deals with similar property for its own account. Neither the Secured PartiesCollateral Agent nor any of its officers, directors, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the Collateral Agent hereunder are solely to protect their interests in the Collateral and shall only act at the direction not impose any duty upon any of the Trustee, subject them to its rights hereinexercise any such powers. The Collateral Agent shall be merely an agent and have no fiduciary duties to the Trustee, the Noteholders or the CVR Holders. The Collateral Agent may refuse to follow any direction accountable only for amounts that conflicts with law or this Agreement or that may they actually receive as a result in personal liability to the Collateral Agent. Prior to taking any action under this Agreement, the Collateral Agent will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance herewith. (i) The duties of the Collateral Agent exercise of such powers, and neither they nor any of their officers, directors, employees or agents shall be determined solely by the express provisions of this Agreement and the Collateral Agent need perform only those duties that are specifically set forth in this Agreement and no othersresponsible to any Grantor for any act or failure to act hereunder, and no implied covenants except for their own gross negligence or obligations willful misconduct nor shall be read into this Agreement or the Security Documents against the Collateral Agent. (ii) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Agent. (iii) The Collateral Agent shall not they be liable or responsible for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts. (iv) The Collateral Agent shall not be liable with respect loss or damage to any action it takes Collateral, or omits to take in good faith in accordance with a direction received by it pursuant to this Agreement. (b) No provision of this Agreement or for any other Finance Document shall require the Collateral Agent to expend or risk its own funds or incur any liability diminution in the performance of any of its duties hereundervalue thereof, except for their own gross negligence or willful misconduct. (c) The Collateral Agent shall not be liable for interest on responsible for, nor incur any money received by it liability with respect to, (i) the existence, genuineness or to make value of any investments. Money held by of the Collateral Agent need not be segregated from or for the validity, perfection, priority or enforceability of the security interest in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part under this Indenture or any of the other fundsCollateral Documents, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Collateral Agent, (ii) the validity or sufficiency of the Collateral or any agreement or assignment contained therein, (iii) the validity of the title of the Grantors to the Collateral, (iv) insuring the Collateral or (v) the payment of taxes, charges or assessments upon the Collateral or otherwise as to the maintenance of the Collateral. (d) The Collateral Agent shall not be deemed to have notice Notwithstanding anything in this Indenture or any knowledge of any matter (including without limitation Events of Default) unless a Responsible Officer of the Collateral AgentDocuments to the contrary, has received written notice thereof (addressed as provided i) in Section 6.1)no event shall the Collateral Agent or any officer, and such notice clearly references the Notes director, employee, representative or this Agreement. (e) The rights, privileges and protections agent of the Collateral Agent set forth be liable under or in connection with this Article V shall apply equally in respect Indenture or any of the Collateral Documents for indirect, special, incidental, punitive or consequential losses or damages of any other document kind whatsoever, including but not limited to which lost profits or loss of opportunity, whether or not foreseeable, even if the Collateral Agent is a partyhas been advised of the possibility thereof and regardless of the form of action in which such damages are sought.

Duties of Collateral Agent. (a) The Collateral Agent is hereby appointed will give notice to the Senior Secured Parties of any action taken, or notices received, by the Borrower as the Collateral Agent for hereunder or under any other Financing Document (other than ministerial actions in the Secured Parties. The Collateral Agent shall only act at the direction ordinary course of the Trusteeadministration of the Intercreditor Agreement Accounts, subject including transfers and deposits of monies pursuant to its rights hereinSection 3.11). The Collateral Agent Notice of any action to be taken hereunder shall be merely an agent and have no fiduciary duties given prior to the Trustee, the Noteholders or the CVR Holders. The Collateral Agent may refuse to follow any direction that conflicts with law or this Agreement or that may result in personal liability to the Collateral Agent. Prior to taking any of such action under this Agreement, by the Collateral Agent will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance herewith. (i) The duties of unless the Collateral Agent determines that to do so would be detrimental to the interests of the Senior Secured Parties, in which event such notice shall be determined solely by given promptly after the express provisions taking of this Agreement and the Collateral Agent need perform only those duties that are specifically set forth in this Agreement and no others, and no implied covenants or obligations shall be read into this Agreement or the Security Documents against the Collateral Agent. (ii) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Agent. (iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Collateral Agent was grossly negligent in ascertaining the pertinent facts. (iv) The Collateral Agent shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to this Agreementsuch action. (b) No provision of this Agreement or any other Finance Document shall require the Collateral Agent to expend or risk its own funds or incur any liability The Senior Secured Parties agree that all liens on and security interests in the performance of any of its duties hereunder. (c) The Shared Collateral Agent securing the Secured Obligations shall not be liable for interest on any money received by it or to make any investments. Money held by in the Collateral Agent need not be segregated from other funds. (d) The Collateral Agent shall not be deemed to have notice or any knowledge of any matter (including without limitation Events of Default) unless a Responsible Officer of the Collateral Agent, has received written notice thereof (addressed as provided in Section 6.1), and such notice clearly references the Notes or this Agreement. (e) The rights, privileges and protections name of the Collateral Agent set forth and administered by and through the Collateral Agent in accordance with this Article V shall apply equally in respect of Agreement, the any other document Financing Documents to which the Collateral Agent is a partyparty and applicable Law. If, as of the date hereof, or at any time in the future, any Senior Secured Party at any time holds a lien on or security interest in any Shared Collateral in its own name, it agrees to assign it, without warranty or recourse, to the Collateral Agent (to be held by the Collateral Agent as the collateral agent for the Senior Secured Parties). The Collateral Agent shall hold its liens on and security interests in the Shared Collateral on behalf of the Senior Secured Parties, as agent, fiduciary and trustee thereof, in the capacity of Collateral Agent hereunder and under the other Security Documents, as provided herein and therein. (c) Notwithstanding anything to the contrary in this Agreement or any other Financing Document, the Collateral Agent shall not be required to exercise any rights or remedies under this Agreement, any of the other Financing Documents or applicable Law or give any consent under this Agreement or any of the other Financing Documents or enter into any Contract amending, supplementing, waiving or otherwise modifying any provision of any this Agreement or any other Financing Document unless it shall have been directed to do so in Senior Creditor Certificates of the Required Senior Creditors. (d) Upon receipt of Senior Creditor Certificates from Senior Secured Parties holding or otherwise representing a majority in principal amount of the Combined Exposure directing the Collateral Agent to deliver the notice specified in each of Section 5.17(c)(i)(B) of the Indenture and Section 4.17(c)(i)(B) of the IDB Lease Agreement, and of any comparable provision of the Working Capital Facility, the Collateral Agent will deliver such notice to each of the Indenture Trustee, the Tax-Exempt Indenture Trustee and the Working Capital Facility Provider. (e) Subject to the provisions of this Article VII, upon the occurrence of a Trigger Event, the Collateral Agent shall take whatever action may be necessary or prudent (including qualifying itself or one of its subsidiaries or Affiliates to do business in the State of Alabama, appointing a co-Collateral Agent hereunder or taking such other action as the Collateral Agent may determine to be appropriate under the circumstances, in each case in accordance with applicable Law), and whether or not directed by the Required Senior Creditors in Senior Creditor Certificates, in order to exercise such rights and remedies with respect to the Shared Collateral (including entering and taking possession of all or any portion thereof, exercising all remedies available to a secured party under the UCC and curing of defaults under the Project Contracts) as are granted to it under, and to protect and enforce it rights under, this Agreement, the other Security Documents and applicable Law.

Duties of Collateral Agent. (a) The Collateral Agent is hereby appointed shall not have any duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Bond Collateral, or, to otherwise take or refrain from taking any action under, or in connection with, this Bond Pledge Agreement, except, as expressly provided by the Borrower as the Collateral Agent for the Secured Parties. The Collateral Agent shall only act at the direction terms and conditions of the Trustee, subject to its rights herein. The Collateral Agent shall be merely an agent and have no fiduciary duties to the Trustee, the Noteholders or the CVR Holdersthis Bond Pledge Agreement. The Collateral Agent may refuse take, but shall have no obligation to follow take, any direction that conflicts with law or and all such actions under this Bond Pledge Agreement or that may result otherwise as it shall deem to be in personal liability the best interests of the Secured Parties in order to maintain the Bond Collateral Agent. Prior to taking any action under this Agreement, and protect and preserve the Bond Collateral Agent will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance herewiththe rights of the Secured Parties. (i) The duties of the Collateral Agent shall be determined solely by the express provisions of this Agreement and the Collateral Agent need perform only those duties that are specifically set forth in this Agreement and no others, and no implied covenants or obligations shall be read into this Agreement or the Security Documents against the Collateral Agent. (ii) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Agent. (iiib) The Collateral Agent shall not be liable responsible in any manner whatsoever for the correctness of any error recitals, statements, representations or warranties contained herein. The Collateral Agent makes no representation as to the value or condition of judgment made in good faith the Bond Collateral or any part thereof, as to the title of the Pledgor or any of its Subsidiaries to the Bond Collateral, as to the security afforded by a Responsible Officerthis Bond Pledge Agreement or, unless it is proved that as to the validity, execution, enforceability, legality or sufficiency of this Bond Pledge Agreement, and the Collateral Agent was grossly negligent shall incur no liability or responsibility in ascertaining the pertinent facts. (iv) respect of any such matters. The Collateral Agent shall not be liable with respect required to any action it takes ascertain or omits inquire as to take in good faith in accordance with a direction received by it pursuant to this Agreement. (b) No provision of this Agreement or any other Finance Document shall require the Collateral Agent to expend or risk its own funds or incur any liability in the performance of by the Pledgor or any of its duties hereunderSubsidiaries of their respective Secured Obligations. (c) The Collateral Agent shall not be liable responsible for interest on insuring the Bond Collateral, for the payment of taxes, charges, assessments or liens upon the Bond Collateral or otherwise as to the maintenance of the Bond Collateral. The Bond Collateral Agent shall have no duty to the Pledgor or any money received by it of its Subsidiaries or to make the Secured Parties as to any investments. Money held by Bond Collateral in its possession or control or in the possession or control of any agent or nominee of the Collateral Agent need not or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, except the duty to accord such of the Bond Collateral as may be segregated from other fundsin its possession substantially the same care as it accords its own assets and the duty to account for monies received by it. (d) The Collateral Agent may execute any of the powers granted under this Bond Pledge Agreement and perform any duty hereunder either directly or by or through agents or attorneys-in-fact, and shall not be responsible for the gross negligence or willful misconduct of any agents or attorneys-in-fact selected by it with reasonable care and without gross negligence or willful misconduct. (e) The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect notice or any knowledge of the occurrence of any matter (including without limitation Events Event of Default) Default unless a Responsible Officer of the Collateral Agent, has received written notice thereof (addressed as provided in Section 6.1), and such notice clearly references the Notes or this Agreement. (e) The rights, privileges and protections of until the Collateral Agent set forth in this Article V shall apply equally in respect have received a notice of Event of Default or a notice from the any other document Pledgor to which the Collateral Agent is a partyin its capacity as Collateral Agent indicating that an Event of Default has occurred. The Collateral Agent shall have no obligation either prior to or after receiving such notice to inquire whether an Event of Default has, in fact, occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice so furnished to it.

Duties of Collateral Agent. (a) The Collateral Agent is hereby appointed by Agent, upon receipt of an appropriate Notice of Event of Default from any Secured Party, shall promptly furnish copies of the Borrower as same to the Collateral Agent for the other Secured Parties. The Collateral Agent shall only act at the direction of the Trustee, subject to its rights herein. The Collateral Agent shall be merely an agent and have no fiduciary duties to the Trustee, the Noteholders or the CVR Holders. The Collateral Agent may refuse to follow any direction that conflicts with law or this Agreement or that may result in personal liability to the Collateral Agent. Prior to taking any action under this Agreement, the Collateral Agent will be entitled to indemnification or security satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance herewith. (i) The duties of the Collateral Agent shall be determined solely by the express provisions of this Agreement and the Collateral Agent need perform only those duties that are specifically set forth in this Agreement and no others, and no implied covenants or obligations shall be read into this Agreement or the Security Documents against the Collateral Agent. (ii) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Collateral Agent. (iiib) The Collateral Agent shall not be liable for have any error duty or obligation to manage, control, use, sell, dispose of judgment made or otherwise deal with the Pledged Collateral or to otherwise take or refrain from taking any action under, or in good faith connection with, this Intercreditor Agreement or the Pledge Agreement, except, subject to Section 5.7, as expressly provided by a Responsible Officer, unless it is proved that the terms and conditions of this Intercreditor Agreement or the Pledge Agreement. The Collateral Agent was grossly negligent may take, but shall have no obligation to take, any and all such actions under the Pledge Agreement or otherwise as it shall deem to be in ascertaining the pertinent facts. best interests of the Secured Parties in order to maintain the Pledged Collateral and protect and preserve the Pledged Collateral and the rights of the Secured Parties; provided, however, that, except as otherwise expressly provided herein, in the absence of written instructions (ivwhich may relate to the exercise of specific remedies or to the exercise of remedies in general) The from the Required Secured Parties the Collateral Agent shall not be liable foreclose on any lien or security interest on the Pledged Collateral or exercise any other remedies available to it under the Pledge Agreement with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to this Agreement. (b) No provision of this Agreement the Pledged Collateral or any other Finance Document shall require the Collateral Agent to expend or risk its own funds or incur any liability in the performance of any of its duties hereunderpart thereof. (c) The Collateral Agent shall not be liable responsible in any manner whatsoever for interest on the correctness of any money received recitals, statements, representations or warranties contained herein or in the Pledge Agreement. The Collateral Agent makes no representation as to the value or condition of the Pledged Collateral or any part thereof, as to the title of any of the Credit Parties to the Pledged Collateral, as to the security afforded by it this Intercreditor Agreement or the Pledge Agreement or as to make the validity, execution, enforceability, legality or sufficiency of this Intercreditor Agreement or any investments. Money held by other Financing Document, and the Collateral Agent need shall incur no liability or responsibility in respect of any such matters. The Collateral Agent shall not be segregated from other fundsrequired to ascertain or inquire as to the performance by any of the Credit Parties of its obligations under any of the Financing Documents. (d) The Collateral Agent shall not be deemed responsible for insuring the Pledged Collateral, for the payment of taxes, charges, assessments or liens upon the Pledged Collateral or otherwise as to the maintenance of the Pledged Collateral, except as provided in the immediately following sentence when the Collateral Agent has possession of the Pledged Collateral. The Collateral Agent shall have notice no duty to any of the Credit Parties or any knowledge of their Subsidiaries or to the Secured Parties as to any Pledged Collateral in its possession or control or in the possession or control of any matter (including without limitation Events of Default) unless a Responsible Officer agent or nominee of the Collateral AgentAgent or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto, has except the duty to accord such Pledged Collateral in its possession substantially the same care as it accords its own assets and the duty to account for monies received written notice thereof (addressed as provided in Section 6.1), and such notice clearly references the Notes or this Agreementby it. (e) The rightsCollateral Agent may execute any of the powers granted under this Intercreditor Agreement or the Pledge Agreement and perform any duty hereunder or thereunder either directly or by or through agents or attorneys-in-fact, privileges and protections shall not be responsible for the gross negligence or willful misconduct of any agents or attorneys-in-fact selected by it with reasonable care. (f) In the event (i) the Collateral Agent set forth in this Article V shall apply equally in respect have received any written request from any of the Credit Parties for consent or approval to any other document matter relating to which any Pledged Collateral or the Credit Party’s obligations with respect thereto or (ii) there shall be due from the Collateral Agent is under the provisions of the Pledge Agreement any performance or the delivery of any instrument, then, in each such event, the Collateral Agent shall send to each of the Secured Parties a partynotice setting forth in reasonable detail (x) an account of the matter as to which such consent has been requested or the performance or instrument required to be so delivered, as the case may be, and (y) the Collateral Agent’s proposed course of action with respect thereto. No such consent of the Secured Parties shall be required with respect to any action taken in accordance with the provisions of Section 4.2 hereof or with respect to any consent, determination or other matter that is, in the Collateral Agent’s reasonable judgment, ministerial or administrative in nature. (g) The Collateral Agent shall not be deemed to have actual, constructive, direct or indirect notice or knowledge of the occurrence of any Event of Default unless and until the Collateral Agent shall have received a Notice of Event of Default or a notice from any of the Credit Parties to the Collateral Agent in its capacity as Collateral Agent indicating that an Event of Default has occurred. The Collateral Agent shall have no obligation either prior to or after receiving such notice to inquire whether an Event of Default has, in fact, occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any notice so furnished to it. Subject in all cases to the provisions of Section 4.2, the Collateral Agent may (but shall not be obligated to) take action hereunder on the basis of the occurrence of an Event of Default, whether or not the Collateral Agent has received any Notice of Event of Default stating that such Event of Default has occurred; provided that any such action taken by the Collateral Agent without direction from the Required Secured Parties shall be limited to actions that the Collateral Agent determines to be necessary to protect and preserve the Pledged Collateral and the rights of the Secured Parties; provided further, that the Collateral Agent shall promptly notify all Secured Parties in writing of any action taken without direction from the Required Secured Parties. (h) The Collateral Agent may, without obtaining the consent of any of the Secured Parties, exchange any of the Pledged Collateral of a Credit Party or other property upon any merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof and, in connection therewith, deposit any of the Pledged Collateral of such Credit Party with any committee, depository, transfer agent, registrar or other designated agency upon such terms as the Collateral Agent may determine. The Collateral Agent shall promptly notify all Secured Parties in writing of any such action taken without the consent from the Required Secured Parties. (i) The Collateral Agent may, without obtaining the consent of any of the Secured Parties, release any of the Pledged Collateral in connection with transactions permitted by (i) Sections 8.4 and 8.5 of the Bank Credit Agreement (or otherwise permitted by any amendments, waivers or consents executed in accordance with the terms of the Bank Credit Documents) and (ii) Sections 10.7, 10.8 and 10.9 of the Senior Note Purchase Agreement (or as otherwise permitted by any amendments, waivers or consents executed in accordance with the terms of the Senior Note Documents), and execute any releases or other documentation evidencing the same upon such terms and conditions as the Collateral Agent may determine. The Collateral Agent shall promptly notify all Secured Parties in writing of any such action taken without the consent from the Required Secured Parties.