Common use of Duties and Liabilities of the Escrow Agent Clause in Contracts

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a1) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in expressly contemplated by this AgreementAgreement or by written instructions from the Company, the Escrow Agent shall not have sell, transfer or otherwise dispose of in any liability under, nor duty to inquire into, the terms and provisions of manner all or any agreement or instrument, other than this Agreement. The duties portion of the Escrow Agent are ministerial in nature, and Amount. (2) The Company agrees to indemnify the Escrow Agent shall not incur and its officers, directors and employees in connection with services rendered under this Agreement from and against any liability present or future taxes, duties, assessments or other charges of whatsoever nature imposed or levied on behalf of Canada or any province or any other than for its own willful misconduct authority or gross negligenceagency having power to tax unless such taxes, duties, assessments or charges are required to be deducted or withheld by law or by administration of such law by the Escrow Agent. (b3) The Escrow Agent shall not incur any liability for following the instructions herein contained have no duties or responsibilities except as expressly provided forin this Agreement and shall have no liability or responsibility arising under any other agreement to which the Escrow Agent is not a party. (4) In the performance of its duties hereunder, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of be entitled to act and rely upon any document or other material presented to instrument, including the Certificate and the Public Announcement, or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and signature believed by it in good faith to be what it purports to be genuine and to be signed by any party hereto or referenced herein or an officer thereof, and shall not be required to investigate the proper party truth or partiesaccuracy of any statement contained in any such document or instrument. The Escrow Agent may assume that any person purporting to give any notice, nor direction or other communication in accordance with the provisions of this Agreement has been duly authorized to do so and for retaining greater certainty, the Escrow Fund in Agent is hereby authorized and directed to rely upon the absence instructions, directions and other notifications of instructions the Company hereunder without obligation to the contrarycall for further evidence of authority or continued authority, or otherwise. (c5) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken action taken, suffered or omitted by it to be taken, hereunder except in good faiththe case of its negligence, bad faith or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful wilful misconduct. (d) . The Escrow Agent may consult with, and obtain the advice of, legal with counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability own choice and shall be fully protected have full and complete authorization and protection for any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with the advice opinion of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that . If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received receive instructions, claims or demands from the Company or from a third person with respect to any party hereto matter arising pursuant to this Agreement which, in its reasonable opinion, are in conflict with any provision of this Agreement, it shall be entitled to refrain from taking any action authorized and directed hereunder until it shall be authorized or directed otherwise in writing by the Company, or by an order of a court of competent jurisdiction from which no further appeal may be taken. (6) The Company shall reimburse and indemnify the Escrow Agent and its officers, directors and employees for, and hold it harmless against, any loss, liability or expense, including, without limitation, reasonable attorneys’ fees, incurred without negligence, bad faith or wilful misconduct on the part of the provisions of Escrow Agent arising out of, or in connection with the acceptance of, or the performance of, its duties and obligations under this Agreement or otherwise pursuant to or in connection with instructionsthis Agreement or its acting as Escrow Agent hereunder, claims including, without limitation, any liability for failing to make any required tax withholdings from payments made hereunder. (7) The Escrow Agent shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information, the Escrow Agent in its sole judgement, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering or demands anti-terrorist legislation, regulation or guideline. Further, should the Escrow Agent, in its sole judgment, determine at any time that its acting under this Agreement has resulted in its being in non-compliance with any applicable anti-money laundering or anti-terrorist legislation, regulation or guideline, then it shall have the right to resign on 15 days written notice to the Company, provided (i) that the Escrow Agent’s written notice shall describe the circumstances of any other party heretosuch non-compliance subject to prohibitions against such disclosure under applicable law; and (ii) that if such circumstances are rectified to the Escrow Agent’s satisfaction within such 15 day period, then such resignation shall not be effective. (8) Except with respect to the Escrow Agent’s obligation to ensure that this Agreement has been duly authorized, executed and delivered by, and is enforceable in accordance with its terms against the Escrow Agent, the Escrow Agent shall refrain from taking be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of this Agreement or any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of items deposited with the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger AgreementEscrow Agent hereunder. (f9) The Escrow Agent shall not be required to exercise any remedies or institute or defend legal proceedings of any kind hereunder until fully funded and shall not be required indemnified as to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreementall costs and expenses, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its including reasonable satisfaction against the cost and expense of such defense or initiationattorneys’ fees.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository onlyduties, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties responsibilities and obligations of the Escrow Agent are purely ministerial in nature and shall be limited to those expressly set forth herein specifically provided and no other. Except as otherwise specifically provided in duties, responsibilities, covenants or obligations, fiduciary or otherwise, shall be inferred or implied, against the Escrow Agent by reason of this Agreement, the . The Escrow Agent shall not have any liability underbe subject to, nor required to comply with, any other agreement between or among the Company or to which the Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those expressly contained herein or Written Instructions delivered pursuant to this Agreement and in accordance with applicable requirements) from the Company or the Dealer Manager. The Escrow Agent shall be under no duty to inquire into, determine whether the terms and provisions Company or the Dealer Manager is complying with requirements of any agreement this Agreement or instrument, other than this Agreement. The duties of the Prospectus in tendering to the Escrow Agent are ministerial the Share Payments or in connection with any other matter or action or inaction of any nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following have the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented right to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to perform any of the provisions hereof or its duties hereunderhereunder through its agents, and the Escrow Agent shall incur no liability and shall be fully protected for any action takenattorneys, suffered custodians or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, nominees; provided that the Escrow Agent shall at all times take such action as is have ultimate responsibility for performing its obligations under this Agreement. (c) The Escrow Agent may conclusively rely upon and shall be protected in acting upon any statement, certificate, notice, request, consent, order or other document reasonably necessary believed by it to keep safely all property held in escrow hereunder. If be genuine and to have been signed or presented by the proper party or parties. (d) The Escrow Agent shall not be under any duty or obligation to inquire into and shall not be liable for the validity, authority, truthfulness, accuracy, sufficiency, correctness, genuineness, or lack of any of the foregoing, of any asset deposited with it or of any statement, certificate, notice, request, instruction, direction, document, instrument, consent, order or information which the Escrow Agent does elect reasonably believes to so act be genuine. (e) The Escrow Agent shall be under no obligation to institute or is required defend any action, suit or proceeding in connection with this Agreement unless first indemnified to so act its satisfaction. The Escrow Agent may consult and hire counsel in respect of any question arising under this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted in good faith upon advice of such counsel. The Escrow Agent shall have the right to seek an adjudication in a court of competent jurisdiction as to the respective rights of the parties hereto and shall not be held liable by any party hereto for any delay or the consequences of any delay occasioned by such resort to court. The expenses associated with such retention of counsel shall be borne by the Company and Dealer Manager, jointly and severally. (f) In the event the Escrow Agent determines that it requires instructions from the Company or Dealer Manager in order for it to keep safely all property held perform a service or obligation hereunder in escrow hereundercircumstances where the manner of performing the service or obligation is not expressly provided for herein or in the standard operating procedures of the Escrow Agent, the Escrow Agent will do so may require the Company or Dealer Manager, as the case may be, to furnish Written Instructions acceptable to the Escrow Agent in its sole discretion, with such acceptance to be indicated by the signature of an Authorized Person of the Escrow Agent (“Conforming Written Instructions”) and may refrain from acting (or omitting an action) in connection with such a service or obligation until receiving such Conforming Written Instruction. Escrow Agent’s obligation to act on Written Instructions is limited to acting on Conforming Written Instructions. The Escrow Agent shall be entitled to assume that any Written Instruction received hereunder is not in any way inconsistent with the provisions of the Company’s charter or other governing instruments or this Agreement or of any vote, resolution or proceeding of the Company’s or Dealer Manager’s Board of Directors, unless and until the Escrow Agent receives Written Instructions to the contrary. (g) Subject to the terms of this Section 6, the Escrow Agent shall be liable to the Company and Dealer Manager (or any person or entity claiming through either) only to the extent the Loss (defined below) to the Company or Dealer Manager is finally adjudicated to have directly resulted from or been caused by the Escrow Agent’s own intentional misconduct, bad faith or gross negligence with respect to its duties under this Agreement. (h) Notwithstanding any other provision of the Agreement, neither party, nor its affiliates nor any of its or their directors, officers, employees, agents or subcontractors shall be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages which are not direct damages regardless of whether such damages were or could have been foreseeable to any extent and regardless of whether any entity has been advised of the possibility of such damages, all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 6(h). Notwithstanding the foregoing provisions of this Section 6(h), this Section 6(h) shall not in any manner restrict, limit or condition BNYM’s ability to receive payment of fees, charges and reimbursable expenses owed hereunder to BNYM due to services rendered hereunder by BNYM or BNYM’s ability to claim lost fees as damages in any claim for wrongful termination. (i) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control (“Event Beyond Reasonable Control”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as (i) the Event Beyond Reasonable Control or circumstances caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted and (ii) the affected party gives prompt notice to the other parties of the occurrence of such Event Beyond Reasonable Control. (j) No party may assert a cause of action against the Escrow Agent or any of its affiliates that allegedly occurred more than eighteen (18) months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. (k) The Company will provide such information and documentation as the Escrow Agent may reasonably request in connection with the services provided by the Escrow Agent under this Agreement. (l) Except as expressly provided in this Agreement, the Escrow Agent hereby disclaims all representations and warranties, express or implied, made to the Company and the Dealer Manager or any other person, including, without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (irrespective of any course of dealing, custom or usage of trade), of any services or goods provided incidental to services provided under this Agreement. The Escrow Agent disclaims any warranty of title or non-infringement except as otherwise set forth in this Agreement. (m) Notwithstanding any other provision in this Agreement, the Company and the Dealer Manager each agrees not to amend or adopt any governing documents, amend or adopt any policies or amend the terms of the Initial Offering or Prospectus which would materially affect the obligations or responsibilities of the Escrow Agent hereunder without the prior written approval of the Escrow Agent, which approval shall not be unreasonably withheld or delayed. (n) The parties agree that the Escrow Agent has no role in the preparation of the documents used in the Initial Offering (the “Offering Documents”), has not reviewed any such documents and makes no representations or warranties with respect to the information contained therein or omitted therefrom. The Escrow Agent agrees that it may be named in the Prospectus and other Offering Documents, to the extent necessary to describe this Agreement and the duties of the Escrow Agent herein, and for no other purpose. The Escrow Agent shall have no obligation, duty or liability with respect to compliance with any federal or state securities, disclosure or tax laws concerning the Offering Documents or the issuance, offering or sale of the Shares. The Escrow Agent shall have no duty or obligation to monitor the application and use of Collected Funds once transferred to the Company, that being the sole obligation and responsibility of the Company. (o) Notwithstanding any other provision of this Agreement, BNYM shall have no duty or obligation to act in accordance with a Transaction Restriction (as defined immediately below) unless and until the Company and BNYM have mutually agreed to and executed Written Instructions in accordance with Section 6(f) which govern all actions BNYM is indemnified expected to its reasonable satisfaction against take or not take in connection with the cost Transaction Restriction. “Transaction Restriction” is hereby defined to mean any provision in the Prospectus which provides for the delay, elimination, restriction, limitation, conditioning, suspension or other adverse impact on the ability of an individual shareholder, groups or categories of shareholders or all shareholders to purchase, transfer or redeem Shares solely upon presentation, as the case may be, of a purchase order satisfying all conditions imposed by this Agreement or a transfer or redemption instruction satisfying all conditions imposed by this Agreement, or any provision of the Company’s charter or any other Company governance document or an action or resolution of the Company’s Board of Directors having the same or similar effect, and expense includes by way of such defense illustration and not limitation any of the foregoing relative to an excessive trading policy, a minimum holding period, a minimum investment period, a share redemption plan, a redemption allocation or initiationproration policy, a cap or limitation on individual or aggregate redemptions under any circumstances or over any period of time, liquidity requirements, a funds availability policy or suitability standards.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository depositary only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of release or refusal to release from escrow the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository onlyduties, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties responsibilities and obligations of the Escrow Agent are purely ministerial in nature and shall be limited to those expressly set forth herein specifically provided and no other. Except as otherwise specifically provided in duties, responsibilities, covenants or obligations, fiduciary or otherwise, shall be inferred or implied, against the Escrow Agent by reason of this Agreement, the . The Escrow Agent shall not have any liability underbe subject to, nor required to comply with, any other agreement between or among the Company or to which the Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those expressly contained herein or Written Instructions delivered pursuant to this Agreement and in accordance with applicable requirements) from the Company or the Dealer Manager. The Escrow Agent shall be under no duty to inquire into, determine whether the terms and provisions Company or the Dealer Manager is complying with requirements of any agreement this Agreement or instrument, other than this Agreement. The duties of the Prospectus in tendering to the Escrow Agent are ministerial the Share Payments or in connection with any other matter or action or inaction of any nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following have the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented right to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to perform any of the provisions hereof or its duties hereunderhereunder through its agents, and the Escrow Agent shall incur no liability and shall be fully protected for any action takenattorneys, suffered custodians or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, nominees; provided that the Escrow Agent shall at all times take such action as is have ultimate responsibility for performing its obligations under this Agreement. (c) The Escrow Agent may conclusively rely upon and shall be protected in acting upon any statement, certificate, notice, request, consent, order or other document reasonably necessary believed by it to keep safely all property held in escrow hereunder. If be genuine and to have been signed or presented by the proper party or parties. (d) The Escrow Agent shall not be under any duty or obligation to inquire into and shall not be liable for the validity, authority, truthfulness, accuracy, sufficiency, correctness, genuineness, or lack of any of the foregoing, of any asset deposited with it or of any statement, certificate, notice, request, instruction, direction, document, instrument, consent, order or information which the Escrow Agent does elect reasonably believes to so act be genuine. (e) The Escrow Agent shall be under no obligation to institute or is required defend any action, suit or proceeding in connection with this Agreement unless first indemnified to so act its satisfaction. The Escrow Agent may consult and hire counsel in respect of any question arising under this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted in good faith upon advice of such counsel. The Escrow Agent shall have the right to seek an adjudication in a court of competent jurisdiction as to the respective rights of the parties hereto and shall not be held liable by any party hereto for any delay or the consequences of any delay occasioned by such resort to court. The expenses associated with such retention of counsel shall be borne by the Company and Dealer Manager, jointly and severally. (f) In the event the Escrow Agent determines that it requires instructions from the Company or Dealer Manager in order for it to keep safely all property held perform a service or obligation hereunder in escrow hereundercircumstances where the manner of performing the service or obligation is not expressly provided for herein or in the standard operating procedures of the Escrow Agent, the Escrow Agent will do so may require the Company or Dealer Manager, as the case may be, to furnish commercially reasonable Written Instructions in a form or format reasonably acceptable to the Escrow Agent in its sole discretion (“Conforming Written Instructions”) and may refrain from acting (or omitting an action) in connection with such a service or obligation until receiving such Conforming Written Instruction. Escrow Agent’s obligation to act on Written Instructions is limited to acting on Conforming Written Instructions. The Escrow Agent shall be entitled to assume that any Written Instruction received hereunder is not in any way inconsistent with the provisions of the Company’s charter or other governing instruments or this Agreement or of any vote, resolution or proceeding of the Company’s or Dealer Manager’s Board of Directors, unless and until the Escrow Agent receives Written Instructions to the contrary. (g) Subject to the terms of this Section 5, the Escrow Agent shall be liable to the Company and Dealer Manager (or any person or entity claiming through either) only to the extent the Loss (defined below) to the Company or Dealer Manager is finally adjudicated to have directly resulted from or been caused by the Escrow Agent’s own intentional misconduct, bad faith or gross negligence with respect to its duties under this Agreement. (h) Except for Losses related to the Escrow Agent’s fraud or willful misconduct, the Escrow Agent’s aggregate cumulative liability to the Company and the Dealer Manager, considered collectively, and any person or entity claiming through the Company or Dealer Manager for any loss, claim, suit, controversy, breach or damage of any nature whatsoever (including but not limited to those arising out of or related to this Agreement) and regardless of the form of action or legal theory (“Loss”) shall not exceed the lesser of (i) the fees received by the Escrow Agent for services provided hereunder during the period preceding the date of the last such Loss; or (ii) $250,000. (i) Notwithstanding any other provision of the Agreement, neither party, nor its affiliates nor any of its or their directors, officers, employees, agents or subcontractors shall be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages which are not direct damages regardless of whether such damages were or could have been foreseeable to any extent and regardless of whether any entity has been advised of the possibility of such damages, all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 5(i). Notwithstanding the foregoing provisions of this Section 5(i), this Section 5(i) shall not in any manner restrict, limit or condition BNY’s ability to receive payment of fees, charges and reimbursable expenses owed hereunder to BNY due to services rendered hereunder by BNY or BNY’s ability to claim lost fees as damages in any claim for wrongful termination. (j) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control (“Event Beyond Reasonable Control”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as (i) the Event Beyond Reasonable Control or circumstances caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted and (ii) the affected party gives prompt notice to the other parties of the occurrence of such Event Beyond Reasonable Control. (k) No party may assert a cause of action against the Escrow Agent or any of its affiliates that allegedly occurred more than eighteen (18) months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. (l) The Company will provide such information and documentation as the Escrow Agent may reasonably request in connection with the services provided by the Escrow Agent under this Agreement. (m) Except as expressly provided in this Agreement, the Escrow Agent hereby disclaims all representations and warranties, express or implied, made to the Company and the Dealer Manager or any other person, including, without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (irrespective of any course of dealing, custom or usage of trade), of any services or goods provided incidental to services provided under this Agreement. The Escrow Agent disclaims any warranty of title or non-infringement except as otherwise set forth in this Agreement. (n) Notwithstanding any other provision in this Agreement, the Company and the Dealer Manager each agrees not to amend or adopt any governing documents, amend or adopt any policies or amend the terms of the Offering or Prospectus which would materially affect the obligations or responsibilities of the Escrow Agent hereunder without the prior written approval of the Escrow Agent, which approval shall not be unreasonably withheld or delayed. (o) The parties agree that the Escrow Agent has no role in the preparation of the documents used in the Offering (the “Offering Documents”), has not reviewed any such documents and makes no representations or warranties with respect to the information contained therein or omitted therefrom. The Escrow Agent agrees that it is indemnified may be named in the Prospectus and other Offering Documents, to its reasonable satisfaction against the cost extent necessary to describe this Agreement and expense the duties of such defense the Escrow Agent herein, and for no other purpose. The Escrow Agent shall have no obligation, duty or initiationliability with respect to compliance with any federal or state securities, disclosure or tax laws concerning the Offering Documents or the issuance, offering or sale of the Shares. The Escrow Agent shall have no duty or obligation to monitor the application and use of Collected Funds once transferred to the Company, that being the sole obligation and responsibility of the Company. (p) The quoted terms below have the indicated meanings:

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever whatsoever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. Without limiting the generality of the foregoing, the Escrow Agent shall not have any duty or responsibility (i) to enforce or cause to be enforced any of the terms and conditions contained in the Merger Agreement or (ii) to verify the accuracy or sufficiency of any notice or other document received by it in connection with this Agreement. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent counsel and shall have used reasonable care in the selection of be reimbursed for such counselfees and expenses pursuant to Section 6 above. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the surviving parties hereto or, with respect to a dispute under Section 4 hereof by all of the parties to such dispute, or by a final order or judgment of an arbitration panel or by a court of competent jurisdiction, jurisdiction or an award by a judgment or order of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement15, or exercises its rights under Section 7 hereof. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation. (g) The parties hereto (other than the Escrow Agent) shall jointly and severally indemnify and hold the Escrow Agent harmless from and against any and all losses, claims. damages. liabilities and expenses (including, without limitation, reasonable attorneys' fees and disbursements) arising out of or in connection with any act or failure to act (other than by reason of any willful misconduct or gross negligence) on the part of the Escrow Agent in connection with any of the duties required to be performed by the Escrow Agent hereunder. The terms of this Section 7(g) shall survive the termination of this Agreement and, with respect to claims arising in connection with the Escrow Agent's duties while acting as such, the resignation or removal of the Escrow Agent. (h) At any time that the Escrow Agent so chooses, the Escrow Agent may resign from its duties hereunder by giving not less than thirty (30) calendar days' prior written notice to Acquiror, Sub, and the Rare Telephony Shareholders. Prior to the expiration of such thirty (30) day period, Acquiror, Sub, and the Rare Telephony Shareholders shall designate, by mutual consent, a successor escrow agent; provided, that notwithstanding any resignation date set forth in the Escrow Agent' notice, such resignation shall not take effect until receipt by the Escrow Agent of an instrument duly executed by a successor escrow agent evidencing its appointment as Escrow Agent hereunder and acceptance of this Agreement. If no successor escrow agent is appointed within such thirty (30) day period, the Escrow Agent may deposit the Escrow Fund with a court of competent jurisdiction as provided in Section 7(j) hereof, whereupon the Escrow Agent shall be discharged of all duties and obligations hereunder. (i) The Escrow Agent may be removed at any time by agreement of Acquiror, Sub, and the Rare Telephony Shareholders by giving not less than thirty (30) calendar days' prior written notice to the Escrow Agent. Prior to the expiration of such thirty (30) day period, Acquiror, Sub, and the Rare Telephony Shareholders shall designate, by mutual consent, a successor escrow agent. If no successor escrow agent is appointed within such thirty (30) day period and accepts the Escrow Fund and agrees to be bound by this Agreement, the Escrow Agent may deposit the Escrow Fund with a court of competent jurisdiction as provided in Section 7(j) hereof, whereupon the Escrow Agent shall be discharged of all duties and obligations hereunder. (j) Notwithstanding anything herein to the contrary, in the event of any disagreement between any of the parties to this Agreement, or between them and any other person, resulting in adverse claims or demands being made against the Escrow Fund, or in the event the Escrow Agent in good faith is in doubt as to what action it should take hereunder, the Escrow Agent may be discharged of its duties and obligations hereunder upon its deposit, at any time after ten (10) calendar days' written notice to Acquiror, Sub, and the Rare Telephony Shareholders, of the Escrow Fund with a court of competent jurisdiction located in the Commonwealth of Pennsylvania. The parties hereto hereby submit to the personal jurisdiction of any such court, waive any and all right to contest the jurisdiction of such court, and consent to service of process by the method and addresses set forth in Section 10 hereof. (k) The parties hereto acknowledge that Escrow Agent has served, and may serve in the future, as counsel to the Acquiror, the Sub and their affiliates. In any matter or dispute arising among the parties hereto, including out of the Merger Agreement, this Agreement, or any document in connection therewith, any party hereto may confer with, and be represented by, such counsel and such counsel shall not be disqualified from any such representation as a result of being the Escrow Agent hereunder. Without limiting the generality of the foregoing, Xxxxxxxx Xxxxxxxxx Professional Corporation acting as Escrow Agent hereunder shall not present a conflict of interest in connection with any representation by it of any or all of the Acquiror, the Sub or any affiliate thereof including, without limitation, in any matter adverse to any party hereto, any such conflict of interest being hereby expressly waived.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible have no duties or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are responsibilities other than those herein specifically provided and no other. Except as otherwise specifically provided expressly set forth in this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent. The Escrow Agent shall not have any liability under, nor no duty to inquire into, the terms and provisions enforce any obligation of any agreement or instrumentperson, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligenceas provided herein. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability be liable for any action taken, suffered taken or omitted in accordance with by it, or any written instructions or certificates given to it hereunder and believed action suffered by it to be taken or omitted, in good faith to faith, and in the exercise of its own best judgment, and shall not be what held liable for any error in judgment made in good faith, unless it purports to shall be and to be signed by the proper party or parties, nor for retaining proved that the Escrow Fund Agent was negligent in ascertaining the absence of instructions to the contrarypertinent facts or acted intentionally in bad faith. (c) The Escrow Agent may rely, and shall be protected in acting, upon any judgment, order, notice, demand, direction, certificate or other instrument, paper or document which may be submitted to it in connection with its duties hereunder and the directions incorporated therein and which is believed by the Escrow Agent to be genuine and signed or presented by the proper person(s), and may accept the same as sufficient evidence of the facts stated therein. The Escrow Agent shall in no way be bound to call for further evidence (whether as to due execution, validity or effectiveness, or the jurisdiction of any court, or as to the truth of any fact), and shall not be liable responsible for any error of judgment, or for any act done or step taken or omitted loss that may be occasioned by it in good faith, or for any mistake of fact or law, or for anything which it may its failing to do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconductso. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in In the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care become involved in any arbitration or litigation relating to the selection Escrowed Property or any part of it, the Escrow Agent is authorized to comply with any decision reached through such counselarbitration or litigation. (e) In the event that If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received receive instructions, claims or demands from any party Party hereto or from a third Person with respect to any matter arising pursuant to this Agreement which, in its reasonable opinion, are in conflict with any of the provisions provision of this Agreement or with instructionsAgreement, claims or demands of any other party hereto, the Escrow Agent it shall be entitled to refrain from taking any action authorized and its sole obligation shall be to keep safely all property held in escrow directed hereunder until it shall be authorized or directed otherwise in writing by all of the parties hereto both other Parties, or by an order of a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreementjurisdiction from which no further appeal may be taken. (f) The Escrow Agent shall not be required to institute legal proceedings use, advance or risk its own funds or otherwise incur financial liability in the performance of any kind and shall not be required to initiate of its duties or defend the exercise of any legal proceedings which of its rights under this Agreement other than any such liability as may be instituted against it in respect arise from the failure of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take to perform such action duties as is reasonably necessary to keep safely all property held are specifically set forth in escrow hereunder. If this Agreement or as a result of the wilful misconduct, fraud or negligent acts or omissions on the part of the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiationrepresentatives.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository onlyduties, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties responsibilities and obligations of the Escrow Agent are purely ministerial in nature and shall be limited to those expressly set forth herein specifically provided and no other. Except as otherwise specifically provided in duties, responsibilities, covenants or obligations, fiduciary or otherwise, shall be inferred or implied, against the Escrow Agent by reason of this Agreement, the . The Escrow Agent shall not have any liability underbe subject to, nor required to comply with, any other agreement between or among the Company or to which the Company is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those expressly contained herein or Written Instructions delivered pursuant to this Agreement and in accordance with applicable requirements) from the Company or the Dealer Manager. The Escrow Agent shall be under no duty to inquire into, determine whether the terms and provisions Company or the Dealer Manager is complying with requirements of any agreement this Agreement or instrument, other than this Agreement. The duties of the Prospectus in tendering to the Escrow Agent are ministerial the Share Payments or in connection with any other matter or action or inaction of any nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following have the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented right to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to perform any of the provisions hereof or its duties hereunderhereunder through its agents, and the Escrow Agent shall incur no liability and shall be fully protected for any action takenattorneys, suffered custodians or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, nominees; provided that the Escrow Agent shall at all times take such action as is have ultimate responsibility for performing its obligations under this Agreement. (c) The Escrow Agent may conclusively rely upon and shall be protected in acting upon any statement, certificate, notice, request, consent, order or other document reasonably necessary believed by it to keep safely all property held in escrow hereunder. If be genuine and to have been signed or presented by the proper party or parties. (d) The Escrow Agent shall not be under any duty or obligation to inquire into and shall not be liable for the validity, authority, truthfulness, accuracy, sufficiency, correctness, genuineness, or lack of any of the foregoing, of any asset deposited with it or of any statement, certificate, notice, request, instruction, direction, document, instrument, consent, order or information which the Escrow Agent does elect reasonably believes to so act be genuine. (e) The Escrow Agent shall be under no obligation to institute or is required defend any action, suit or proceeding in connection with this Agreement unless first indemnified to so act its satisfaction. The Escrow Agent may consult and hire counsel in respect of any question arising under this Agreement, and the Escrow Agent shall not be liable for any action taken or omitted in good faith upon advice of such counsel. The Escrow Agent shall have the right to seek an adjudication in a court of competent jurisdiction as to the respective rights of the parties hereto and shall not be held liable by any party hereto for any delay or the consequences of any delay occasioned by such resort to court. The expenses associated with such retention of counsel shall be borne by the Company and Dealer Manager, jointly and severally. (f) In the event the Escrow Agent determines that it requires instructions from the Company or Dealer Manager in order for it to keep safely all property held perform a service or obligation hereunder in escrow hereundercircumstances where the manner of performing the service or obligation is not expressly provided for herein or in the standard operating procedures of the Escrow Agent, the Escrow Agent will do so may require the Company or Dealer Manager, as the case may be, to furnish Written Instructions acceptable to the Escrow Agent in its sole discretion, with such acceptance to be indicated by the signature of an Authorized Person of the Escrow Agent (“Conforming Written Instructions”) and may refrain from acting (or omitting an action) in connection with such a service or obligation until receiving such Conforming Written Instruction. Escrow Agent’s obligation to act on Written Instructions is limited to acting on Conforming Written Instructions. The Escrow Agent shall be entitled to assume that any Written Instruction received hereunder is not in any way inconsistent with the provisions of the Company’s charter or other governing instruments or this Agreement or of any vote, resolution or proceeding of the Company’s or Dealer Manager’s Board of Directors, unless and until the Escrow Agent receives Written Instructions to the contrary. (g) Subject to the terms of this Section 5, the Escrow Agent shall be liable to the Company and Dealer Manager (or any person or entity claiming through either) only to the extent the Loss (defined below) to the Company or Dealer Manager is finally adjudicated to have directly resulted from or been caused by the Escrow Agent’s own intentional misconduct, bad faith or gross negligence with respect to its duties under this Agreement. (h) Notwithstanding any other provision of the Agreement, neither party, nor its affiliates nor any of its or their directors, officers, employees, agents or subcontractors shall be liable under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or for any other damages which are not direct damages regardless of whether such damages were or could have been foreseeable to any extent and regardless of whether any entity has been advised of the possibility of such damages, all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in whole or in part over this Section 5(h). Notwithstanding the foregoing provisions of this Section 5(h), this Section 5(h) shall not in any manner restrict, limit or condition BNYM’s ability to receive payment of fees, charges and reimbursable expenses owed hereunder to BNYM due to services rendered hereunder by BNYM or BNYM’s ability to claim lost fees as damages in any claim for wrongful termination. (i) Notwithstanding any other provision, and for all purposes, of this Agreement: Neither party shall be liable for any Loss (including Loss caused by delays, failure, errors, interruption or loss of data) or breach hereunder occurring directly or indirectly by reason of any event or circumstance, whether foreseeable or unforeseeable, which despite the taking of commercially reasonable measures is beyond its reasonable control (“Event Beyond Reasonable Control”). Upon the occurrence of an Event Beyond Reasonable Control, the affected party shall be excused from any non-performance caused by the Event Beyond Reasonable Control for so long as (i) the Event Beyond Reasonable Control or circumstances caused by it prevail and such party continues to use commercially reasonable efforts to attempt to perform the obligation so impacted and (ii) the affected party gives prompt notice to the other parties of the occurrence of such Event Beyond Reasonable Control. (j) No party may assert a cause of action against the Escrow Agent or any of its affiliates that allegedly occurred more than eighteen (18) months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. (k) The Company will provide such information and documentation as the Escrow Agent may reasonably request in connection with the services provided by the Escrow Agent under this Agreement. (l) Except as expressly provided in this Agreement, the Escrow Agent hereby disclaims all representations and warranties, express or implied, made to the Company and the Dealer Manager or any other person, including, without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (irrespective of any course of dealing, custom or usage of trade), of any services or goods provided incidental to services provided under this Agreement. The Escrow Agent disclaims any warranty of title or non-infringement except as otherwise set forth in this Agreement. (m) Notwithstanding any other provision in this Agreement, the Company and the Dealer Manager each agrees not to amend or adopt any governing documents, amend or adopt any policies or amend the terms of the Initial Offering or Prospectus which would materially affect the obligations or responsibilities of the Escrow Agent hereunder without the prior written approval of the Escrow Agent, which approval shall not be unreasonably withheld or delayed. (n) The parties agree that the Escrow Agent has no role in the preparation of the documents used in the Initial Offering (the “Offering Documents”), has not reviewed any such documents and makes no representations or warranties with respect to the information contained therein or omitted therefrom. The Escrow Agent agrees that it may be named in the Prospectus and other Offering Documents, to the extent necessary to describe this Agreement and the duties of the Escrow Agent herein, and for no other purpose. The Escrow Agent shall have no obligation, duty or liability with respect to compliance with any federal or state securities, disclosure or tax laws concerning the Offering Documents or the issuance, offering or sale of the Shares. The Escrow Agent shall have no duty or obligation to monitor the application and use of Collected Funds once transferred to the Company, that being the sole obligation and responsibility of the Company. (o) Notwithstanding any other provision of this Agreement, BNYM shall have no duty or obligation to act in accordance with a Transaction Restriction (as defined immediately below) unless and until the Company and BNYM have mutually agreed to and executed Written Instructions in accordance with Section 5(f) which govern all actions BNYM is indemnified expected to its reasonable satisfaction against take or not take in connection with the cost Transaction Restriction. “Transaction Restriction” is hereby defined to mean any provision in the Prospectus which provides for the delay, elimination, restriction, limitation, conditioning, suspension or other adverse impact on the ability of an individual shareholder, groups or categories of shareholders or all shareholders to purchase, transfer or redeem Shares solely upon presentation, as the case may be, of a purchase order satisfying all conditions imposed by this Agreement or a transfer or redemption instruction satisfying all conditions imposed by this Agreement, or any provision of the Company’s charter or any other Company governance document or an action or resolution of the Company’s Board of Directors having the same or similar effect, and expense includes by way of such defense illustration and not limitation any of the foregoing relative to an excessive trading policy, a minimum holding period, a minimum investment period, a share redemption plan, a redemption allocation or initiationproration policy, a cap or limitation on individual or aggregate redemptions under any circumstances or over any period of time, liquidity requirements, a funds availability policy or suitability standards.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Stock Purchase Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereby represents that it has the authority to enter into this Agreement and serve as the Escrow Agent in accordance with the terms of this Agreement. The Escrow Agent is acting hereunder as a depository onlyonly and without compensation, and it not as the agent of any Party, and the Escrow Agent shall not be responsible have no duties or liable in responsibilities except those expressly set forth herein. The Escrow Agent shall have no liability hereunder except for its own bad faith, gross negligence or willful misconduct. (b) In the event any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereofterms or provisions of any other agreement between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control in all respects. It is agreed that This Agreement sets forth exclusively the duties and obligations of the Escrow Agent are those herein specifically provided with respect to any and no other. Except all matters pertinent to its acting as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties heretosuch hereunder. The Escrow Agent shall not have be obligated to refer to, and shall not be bound by, any responsibility for the genuineness or validity of any other document or agreement. Notwithstanding any provision to the contrary contained in any other material presented to or deposited with it nor shall it have any liability for any action takenagreement, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund Agent shall have no interest in the absence of instructions to the contraryEscrow Funds except as provided in this Agreement. (c) The Escrow Agent shall not be liable for bound by any error modification of judgmentthis Agreement affecting the rights, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, duties and obtain the advice of, legal counsel selected by it in the event of any question as to any obligations of the provisions hereof or its duties hereunderEscrow Agent, unless such modification shall be in writing and signed by the other parties hereto, and the Escrow Agent shall incur no liability have given its prior written consent thereto. (d) Subject to the terms and conditions of this Section 3(d), the Escrow Agent may resign at any time for any reason by giving written notice thereof to the Parties. Upon receipt of any notice of resignation by the Escrow Agent, the Parties shall cooperate in good faith to select a mutually acceptable replacement escrow agent as soon as possible thereafter. A resigning escrow agent shall continue to hold the Escrow Funds pursuant to this Agreement until a mutually acceptable replacement escrow agent has been selected, after which the resigning escrow agent shall transfer the Escrow Funds to the replacement escrow agent. Upon delivery of the Escrow Funds to a replacement escrow agent, a resigning escrow agent shall be relieved of all further obligations under this Agreement and shall be fully protected for any action takenreleased from all liabilities, suffered or omitted by it responsibilities and obligations of every kind and nature under this Escrow Agreement. Notwithstanding anything to the contrary in good faith in accordance this Agreement, Escrow Agent may deposit the Escrow Funds with the advice clerk of such counsel, provided that the court of the United States District Court for the Southern District of New York or any other court of competent jurisdiction. Escrow Agent shall have used reasonable care in the selection give written notice of such counsel. (e) In the event that the deposit to each Party and, upon such deposit, Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any relieved and discharged of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreementfurther obligations hereunder. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a) The acceptance by the Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided under this Agreement is subject to the following terms and no other. Except as otherwise specifically provided conditions: (a) The Escrow Agent shall be protected in this Agreementacting, or refraining from acting, upon any written notice, request, waiver, consent, receipt or other paper or document signed by the Beneficiary that the Escrow Agent shall not have any liability under, nor duty in good faith believes to inquire into, the terms and provisions of any agreement or instrument, other than this Agreementbe genuine. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur have no responsibility to inquire into or determine genuineness or authenticity of any liability whatsoever other than for its own willful misconduct documents or gross negligenceinstruments submitted to it as originals and may rely upon any order from a court of competent jurisdiction related to the disbursement of funds from the Perpetual Care Fund. (b) The Escrow Agent shall not incur any liability be responsible for following the instructions herein contained or expressly provided for, or written instructions given collection from the Grantor of payments required to be made by the parties hereto. The Grantor to the Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contraryhereunder. (c) The If a lawsuit shall arise with respect to the disposition by the Escrow Agent of the Escrow Assets held in this Perpetual Care Fund pursuant to this Agreement, or any part thereof, the Escrow Agent shall not be liable for refusing to deliver any error part of judgmentsuch property that is the subject of the lawsuit unless and until such lawsuit is resolved by a final judgment or order from a court of competent jurisdiction from which no right of appeal exists, or for in respect of which any act done or step taken or omitted by it in good faithright of appeal has expired without being exercised, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconductby written agreement acceptable to the Escrow Agent executed and delivered by the parties hereto. (d) The Escrow Agent may consult with, shall ensure the filing of all required tax returns for which the Perpetual Care Fund is liable and obtain the advice of, legal counsel selected by it in the event of any question as to any shall disburse funds from earnings of the provisions hereof or its duties hereunder, and Perpetual Care Fund to pay lawfully due taxes owed by the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counselPerpetual Care Fund. (e) In the event that The Escrow Agent shall, upon receipt of notice provided to the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to under Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter 16 of this Agreement, provided that maintain records of ownership of the Escrow Agent shall at all times take such action as Facility during the time in which the Perpetual Care Fund is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiationestablished.

Duties and Liabilities of the Escrow Agent. (a1) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible have no duties or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are responsibilities other than those herein specifically provided and no other. Except as otherwise specifically provided expressly set forth in this Agreement, and no implied duties or obligations shall be read into this Agreement against the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties heretoAgent. The Escrow Agent shall not have no duty to enforce any responsibility for the genuineness or validity obligation of any document person, other than as provided herein. The Escrow Agent, in carrying out its duties and responsibilities hereunder, shall not be required to exercise any discretion or other material presented independent judgement, provided that it shall be required to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder act reasonably and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contraryfaith. (c2) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith, or and in the exercise of its own best judgment, and shall not be held liable for any mistake of fact error in judgment made in good faith, unless it shall be proved that the Escrow Agent was negligent in ascertaining the pertinent facts or law, or for anything which it may do or refrain from doing acted intentionally in connection with this Agreement, except its own gross negligence or willful misconductbad faith. (d3) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in In the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care become involved in any arbitration or litigation relating to the selection of Escrow Units, the Escrow Agent is authorized to comply with any decision reached through such counselarbitration or litigation. (e4) In the event that If the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received receive instructions, claims or demands from any party hereto or from a third Person with respect to any matter arising pursuant to this Agreement which, in its reasonable opinion, are in conflict with any of the provisions provision of this Agreement or with instructionsAgreement, claims or demands of any other party hereto, the Escrow Agent it shall be entitled to refrain from taking any action authorized and its sole obligation shall be to keep safely all property held in escrow directed hereunder until it shall be authorized or directed otherwise in writing by all of both the parties hereto Representative and the Parent, or by an order of a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings jurisdiction from which no further appeal may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiationtaken.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository only, and it shall not be responsible have no duties or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereofresponsibilities except those expressly set forth herein. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, faith or for any mistake of fact in act or law, or for anything which it may do or refrain from doing in connection with this Agreementherewith, except for its own gross negligence negligence, willful misconduct or willful misconductactions taken in bad faith. It may conclusively rely on any notice, instruction, certificate, statement, request, consent, confirmation, agreement or other instrument which it reasonably believes to be genuine and to have been signed or presented by a proper person or persons. The Purchaser and Alychlo shall deliver to the Escrow Agent a list of authorized signatories, as set forth in the attached Schedule B hereto, with respect to any notice, certificate, instrument, demand, request, direction, instruction, waiver, receipt, consent or other document or communication required or permitted to be furnished to the Escrow Agent hereunder, and the Escrow Agent shall be entitled to rely on such list with respect to any party until a new list is furnished by such party to the Escrow Agent. Furthermore, in the release instructions are given (other than in writing at the time of execution of this Stock Escrow Agreement) by means of Joint Written Instructions, the Escrow Agent is authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule C hereto, and the Escrow Agent may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers designated for such call-backs may be changed only in a writing actually received by the Escrow Agent. (b) The Escrow Agent shall have no duties with respect to any agreement or agreements, including but not limited to the Purchase Agreement. The Escrow Agent shall not be required to inquire as to the performance or observation of any obligation, term or condition under any agreement or arrangement by the other parties hereto. The Escrow Agent shall be under no liability to any party hereto by reason of any failure on the part of any party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. This Stock Escrow Agreement shall not be deemed to create a fiduciary relationship between the parties hereto under state or federal law. In the event that any of the terms and provisions of any other agreement (excluding any amendment to this Stock Escrow Agreement) between any of the parties hereto conflict or are inconsistent with any of the terms and provisions of this Stock Escrow Agreement, the terms and provisions of this Stock Escrow Agreement shall govern and control in all respects relating to the Escrow Agent, but in every other respect involving the parties and beneficiaries of such other agreement, the other agreement shall control. Notwithstanding any provision to the contrary contained in any other agreement (excluding any amendment to this Stock Escrow Agreement), the Escrow Agent shall have no interest in the Escrow Account except as provided in this Stock Escrow Agreement. (c) So long as the Escrow Agent shall have any obligation to release Escrow Shares and New Shares, as the case may be, to the Purchaser from the Escrow Account, the Escrow Agent shall keep proper books of record and account, in which full and correct entries shall be made of all release activity in the Escrow Account. (d) The Escrow Agent may consult withshall not be bound by any modification of this Stock Escrow Agreement affecting the rights, duties and obtain the advice of, legal counsel selected by it in the event of any question as to any obligations of the provisions hereof or its duties hereunderEscrow Agent, unless such modification shall be in writing and signed by the other parties hereto, and the Escrow Agent shall incur no liability have given its prior written consent thereto. The Escrow Agent shall not be bound by any other modification of this Stock Escrow Agreement unless and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that until the Escrow Agent shall have used reasonable care in the selection of such counselreceived written notice thereof. (e) In The Escrow Agent may resign at any time by giving no less than thirty (30) days prior written notice by registered or certified mail to Alychlo and the event that Purchaser, but such resignation shall not become effective until a successor escrow agent shall have been appointed by mutual agreement, in writing, of the Purchaser and Alychlo, and shall have accepted such appointment in writing. If no instrument of acceptance by a successor escrow agent shall have been delivered to the Escrow Agent shall be uncertain as to its duties or rights hereunder or within thirty (30) days after the giving of such notice of resignation, the resigning Escrow Agent may, at the joint and several expense of Alychlo and the Purchaser, petition any court of competent jurisdiction for the appointment of a successor escrow agent. Notwithstanding the foregoing, if no successor escrow agent shall have received instructionsbeen designated within the thirty (30) day period following the Escrow Agent’s notice, claims or demands from any party hereto which, in its reasonable opinion, conflict with any all obligations of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent hereunder shall refrain from taking any action nevertheless cease and its terminate. Its sole obligation responsibility thereafter shall be to keep safely all property then held by it and to deliver the same to a person designated by the other parties hereto or in escrow hereunder until it accordance with the direction of a final and non-appealable order or judgment of a court of competent jurisdiction. In such event the date of termination of this Stock Escrow Agreement shall be directed extended if necessary so as to expire no later than thirty (30) days following the acceptance of an appointment by a successor escrow agent. (f) By Joint Written Instructions, the Purchaser and Alychlo shall have the right to terminate their appointment of the Escrow Agent, or successor escrow agent, as Escrow Agent. The Escrow Agent or successor escrow agent shall continue to act as Escrow Agent until a successor escrow agent is appointed by Joint Written Instructions and qualified to act as Escrow Agent. (g) If at any time hereafter the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any person, or the position of the Escrow Agent shall become vacant for any of the foregoing reasons or for any other reason, Alychlo and the Purchaser shall as soon as reasonably possible appoint a successor escrow agent to fill such vacancy by Joint Written Instructions. (h) Every successor escrow agent appointed hereunder shall execute, acknowledge and deliver to its predecessor, and also to Alychlo and the Purchaser, an instrument in writing accepting such appointment hereunder, and thereupon such successor escrow agent, without any further act, shall become fully vested with all the rights, immunities and powers and shall be subject to all of the duties and obligations, of its predecessor; and every predecessor escrow agent shall deliver all property and moneys held by all it hereunder to such successor escrow agent. (i) Nothing herein shall be construed to prohibit or otherwise restrict the ability of the Escrow Agent to make other investments or otherwise carry out its duties through subsidiaries or affiliates. (j) The Escrow Agent shall never be required to use or advance its own funds or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder. (k) In no event shall the Escrow Agent be liable, directly or indirectly, for any special, punitive, indirect or consequential damages, even if the Escrow Agent has been advised of the possibility of such damages. (l) If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Escrow Shares (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Escrow Shares), the Escrow Agent shall promptly notify the Purchaser and Alychlo and, following the advice of its legal counsel and consultation with the Purchaser and Alychlo, be authorized to comply therewith in a reasonable manner it and its legal counsel deems appropriate following consultation with the Purchaser and Alychlo; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Escrow Agent shall not be liable to any of the parties hereto or by a final order to any other person or judgment of an arbitration panel entity even though such order, judgment, decree, writ or court of competent jurisdiction, process may be subsequently modified or an award of an arbitrator pursuant vacated or otherwise determined to an arbitration conducted pursuant to Section 9.8 of the Merger Agreementhave been without legal force or effect. (fm) In no event shall the Escrow Agent be liable for an amount in excess of the value of the Escrow Shares, valued as of the current market value on the date of deposit, but only to the extent of direct money damages. (n) The Escrow Agent shall, following the advice of its legal counsel, be entitled to take any action or to refuse to take any action which the Escrow Agent regards as necessary for the Escrow Agent to comply with any applicable law, regulation or fiscal requirement, court orders, or the rules, operating procedures or market practice of any relevant stock exchange or other market or clearing system. (o) When the Escrow Agent acts in good faith on any information, instructions, communications, (including, but not limited to, communications with respect to the wire transfer of funds or the release of the Escrow Shares) sent by email or other form of electronic or data transmission, which it believes to be genuine and signed or presented by a proper person or persons, the Escrow Agent, absent gross negligence, bad faith, fraud or willful misconduct, shall not be required responsible or liable in the event such communication is not an authorized or authentic communication of Alychlo or the Purchaser or is not in the form Alychlo or the Purchaser sent or intended to institute legal proceedings of any kind and shall not be required send (whether due to initiate fraud, distortion or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, otherwise); provided that the Escrow Agent complies with its duties under this Stock Escrow Agreement. The Purchaser and Alychlo shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If jointly and severally indemnify the Escrow Agent does elect to so act against any loss, liability, claim or is required to so act expense (including reasonable and documented legal fees and expenses) it may incur with its acting in order to keep safely all property held accordance with any such communication. Notwithstanding the foregoing, as between themselves, the Purchaser and Alychlo agree that any such amounts indemnified hereunder shall be paid (or reimbursed, as applicable) in escrow hereunder, equal shares by the Purchaser on the one hand and by Alychlo on the other hand. (p) Any entity into which the Escrow Agent will do so only in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the extent that it is indemnified Escrow Agent in its individual capacity shall be a party, or any corporation to which all or substantially all of the corporate trust business of the Escrow Agent in its reasonable satisfaction against individual capacity may be transferred shall be the cost Escrow Agent under this Stock Escrow Agreement without further action. The Escrow Agent shall promptly notify the Purchaser and expense Alychlo in the event this occurs. (q) The agreements set forth in this Section 6 shall survive the resignation or removal of such defense or initiationthe Escrow Agent, the termination of this Stock Escrow Agreement and the payment of all amounts hereunder.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository depositary only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection with this Agreement, except its own gross negligence or willful misconduct. (d) The Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof or its duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel.. \PHILA2\99813_4 (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the surviving parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 13 of the Merger Stock Purchase Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a) The Escrow Agent shall act hereunder as depository depositary only, and it he shall not be responsible or liable in any manner whatever whatsoever for any determinations regarding the cancellation and forfeiture of release or refusal to release from escrow the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided and no other. Except as otherwise specifically provided in this Agreement, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions of any agreement or instrument, other than this Agreement. The duties of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its his own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by RCM and the parties heretoAcquiree Shareholders. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it him nor shall it he have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it him hereunder and believed by it him in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions to the contrary. (c) The Escrow Agent shall not be liable for any error of judgment, or for any act done or step taken or omitted by it him in good faith, or for any mistake of fact or law, or for anything which it he may do or refrain from doing in connection with this Agreement, except its his own gross negligence or willful misconduct. (d) The Escrow Agent agent may consult with, and obtain the advice of, legal counsel selected by it him in the event of any question as to any of the provisions hereof or its his duties hereunder, and the Escrow Agent shall incur no liability and shall be fully protected for any action taken, suffered or omitted by it him in good faith in accordance with the advice of such counsel, provided that the Escrow Agent shall have used reasonable care in the selection of such counsel. (e) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall have received instructions, claims or demands from any party hereto which, in its reasonable opinion, conflict with any of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger Agreement. (f) The Escrow Agent shall not be required to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it him in respect of the subject matter of this Agreement, provided that the Escrow Agent shall at all times take such action as is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it he is indemnified to its his reasonable satisfaction against the cost and expense of such defense or initiation.

Duties and Liabilities of the Escrow Agent. (a) The acceptance by the Escrow Agent shall act hereunder as depository only, and it shall not be responsible or liable in any manner whatever for any determinations regarding the cancellation and forfeiture of the Escrow Shares to be made pursuant to Section 4 hereof. It is agreed that the duties and obligations of the Escrow Agent are those herein specifically provided under this Agreement is subject to the following terms and no other. Except as otherwise specifically provided in this Agreementconditions: (a) The Escrow Agent shall hold the original perpetual care fund bond and act upon instructions from the Beneficiary to draw upon or demand payment, attach amendments or riders, return the perpetual care fund bond to the issuing institution for cancellation, accept replacement perpetual care fund bonds, and other actions necessary to carry out the purposes of the Perpetual Care Fund. (b) If the Beneficiary has not notified the Escrow Agent within 90 days after receipt of a notice of nonrenewal of the perpetual care fund bond, the Escrow Agent shall not have any liability under, nor duty to inquire into, the terms and provisions draw upon or demand payment of any agreement or instrument, other than this Agreement. The duties unused portion of the Escrow Agent are ministerial in nature, and the Escrow Agent shall not incur any liability whatsoever other than for its own willful misconduct or gross negligence. (b) The Escrow Agent shall not incur any liability for following the instructions herein contained or expressly provided for, or written instructions given by the parties hereto. The Escrow Agent shall not have any responsibility for the genuineness or validity of any document or other material presented to or deposited with it nor shall it have any liability for any action taken, suffered or omitted in accordance with any written instructions or certificates given to it hereunder and believed by it in good faith to be what it purports to be and to be signed by the proper party or parties, nor for retaining the Escrow Fund in the absence of instructions perpetual care fund bond at least 15 days prior to the contraryexpiration or nonrenewal of the perpetual care fund bond. (c) The Escrow Agent shall not be liable for any error of judgmentprotected in acting, or for refraining from acting, upon any act done written notice, request, waiver, consent, receipt or step taken other paper or omitted document signed by it an authorized officer of the Beneficiary that the Escrow Agent in good faith, faith believes to be genuine. The Escrow Agent shall have no responsibility to inquire into or for determine genuineness or authenticity of any mistake documents or instruments submitted to it as originals and may rely upon any order from a court of fact or law, or for anything which it may do or refrain competent jurisdiction related to the disbursement of funds from doing in connection with this Agreement, except its own gross negligence or willful misconductthe Escrow Account. (d) The If a lawsuit shall arise with respect to the disposition by the Escrow Agent may consult with, and obtain the advice of, legal counsel selected by it in the event of any question as to any of the provisions hereof Escrow Assets held in this Escrow Account pursuant to this Agreement, or its duties hereunderany part thereof, and the Escrow Agent shall incur no liability and shall not be fully protected liable for refusing to deliver any action taken, suffered or omitted by it in good faith in accordance with the advice part of such counselproperty that is the subject of the lawsuit unless and until such lawsuit is resolved by a final judgment or order from a court of competent jurisdiction from which no right of appeal exists, provided that or in respect of which any right of appeal has expired without being exercised, or by written agreement acceptable to the Escrow Agent shall have used reasonable care in executed and delivered by the selection of such counselparties hereto. (e) In the event that the The Escrow Agent shall be uncertain as to its duties or rights hereunder or ensure the filing of all required tax returns for which the Escrow Account is liable and shall have received instructions, claims or demands disburse funds from any party hereto which, in its reasonable opinion, conflict with any earnings of the provisions of this Agreement or with instructions, claims or demands of any other party hereto, Escrow Account to pay lawfully due taxes owed by the Escrow Agent shall refrain from taking any action and its sole obligation shall be to keep safely all property held in escrow hereunder until it shall be directed otherwise in writing by all of the parties hereto or by a final order or judgment of an arbitration panel or court of competent jurisdiction, or an award of an arbitrator pursuant to an arbitration conducted pursuant to Section 9.8 of the Merger AgreementAccount. (f) The Escrow Agent shall not be required shall, upon receipt of notice provided to institute legal proceedings of any kind and shall not be required to initiate or defend any legal proceedings which may be instituted against it in respect of the subject matter Escrow Agent under Section 16 of this Agreement, provided that maintain records of ownership of the Facility during the time in which the Escrow Agent shall at all times take such action as Account is reasonably necessary to keep safely all property held in escrow hereunder. If the Escrow Agent does elect to so act or is required to so act in order to keep safely all property held in escrow hereunder, the Escrow Agent will do so only to the extent that it is indemnified to its reasonable satisfaction against the cost and expense of such defense or initiationexistence.