Common use of Exculpatory Provisions; Indemnification Clause in Contracts

Exculpatory Provisions; Indemnification. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents. Without limiting the generality of the foregoing, the Collateral Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Required Holders (or such other number or percentage of Holders as shall be expressly provided for herein or in the other Note Documents), provided, however, that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or applicable Requirements of Law; (c) shall not, except as expressly set forth herein and in the other Note Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity; (d) shall not be liable to any Holder for any action taken or not taken by it the absence of its own gross negligence or willful misconduct; (e) shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Collateral Agent in its capacity as such by a Loan Party or a Holder; and (f) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, the Security Agreement or any other Note Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in any Note Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent in its capacity as such. By accepting the benefits of this Agreement, each Holder severally agrees (A) to reimburse the Collateral Agent, on demand, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) for any expenses referred to in this Agreement or in any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by the Collateral Agent in connection with the enforcement and protection of the rights of the Collateral Agent and the Holders which shall not have been paid or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement or in any document securing the Obligations or the enforcement and protection of the rights of Holders, to the extent the same shall not have been reimbursed by any Loan Party or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Person.

Exculpatory Provisions; Indemnification. a. The Collateral Escrow Agent shall not have any be obligated only for the performance of such duties or obligations except those expressly as are specifically set forth herein and as set forth in any additional written escrow instructions (which instructions shall not expose Escrow Agent to any liability additional to that assumed by Escrow Agent hereunder) which the Escrow Agent may receive after the date of this Agreement which are signed by an officer of Parent and the Securityholders' Agent, and may rely and shall be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have been signed or presented by the proper party or parties. b. The Escrow Agent is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court of law, notwithstanding any notices, warnings or other Note Documentscommunications from any party or any other person to the contrary. Without limiting In case the generality Escrow Agent obeys or complies with any such order, judgment or decree of the foregoingany court, the Collateral Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Note Documents that the Collateral Escrow Agent is required to exercise as directed in writing by the Required Holders (or such other number or percentage of Holders as shall be expressly provided for herein or in the other Note Documents), provided, however, that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or applicable Requirements of Law; (c) shall not, except as expressly set forth herein and in the other Note Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity; (d) shall not be liable to any Holder for of the parties hereto or to any action taken other person by reason of such compliance, notwithstanding any such order, judgment or not taken by it the absence of its own gross negligence decree being subsequently reversed, modified, annulled, set aside, vacated or willful misconduct; (e) shall be deemed not found to have knowledge of been entered without jurisdiction. c. In performing any Default unless and until notice describing such Default is given to the Collateral Agent in its capacity as such by a Loan Party or a Holder; and (f) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in duties under or in connection with this Agreement, the Security Escrow Agent shall not be liable to any party for damages, losses, or expenses, except for gross negligence or willful misconduct on the part of the Escrow Agent. The Escrow Agent shall not incur any such liability for (A) any act or failure to act made or omitted in good faith, or (B) any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement that the Escrow Agent shall in good faith believe to be genuine, nor will the Escrow Agent be liable or any other Note Documentresponsible for forgeries, (ii) fraud, impersonations, or determining the contents scope of any certificaterepresentative authority. In addition, report or other document delivered hereunder or thereunder the Escrow Agent may consult with the legal counsel in connection with Escrow Agent's duties under or in connection herewith with this Agreement and shall be fully protected in any act taken, suffered, or therewith, (iii) permitted by him/her in good faith in accordance with the performance or observance advice of counsel. The Escrow Agent is not responsible for determining and verifying the authority of any of the covenants, agreements person acting or other terms or conditions set forth herein or therein or the occurrence purporting to act on behalf of any Event of Defaultparty to this Agreement. d. If any controversy arises between the parties to this Agreement, (iv) or with any other party, concerning the validity, enforceability, effectiveness or genuineness subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any other Note Document or any other agreement, instrument or document or (v) action regarding it. The Escrow Agent may hold the satisfaction Escrow Shares and all documents relating thereto and may wait for settlement of any condition set forth in such controversy by final appropriate legal proceedings or other means. In such event, the Escrow Agent will not be liable for damage. Furthermore, the Escrow Agent may at its option, and at the expense of the Escrow Fund, file an action of interpleader requiring the parties to answer and litigate any Note Documentclaims and rights among themselves. The Escrow Agent is authorized to deposit with the clerk of the court all documents and Escrow Shares, other than to confirm receipt of items expressly required to be delivered except all cost, expenses, charges and reasonable attorney fees incurred by the Escrow Agent due to the Collateral interpleader action (and which the parties jointly and severally agree to pay). Upon initiating such action, the Escrow Agent in its capacity as such. By accepting shall be fully released and discharged of and from all obligations and liability imposed by the benefits terms of this Agreement. e. Parent and the Securityholders' Agent and their respective successors and assigns agree jointly and severally to indemnify and hold Escrow Agent harmless against any and all losses, each Holder severally agrees (A) to reimburse the Collateral Agentclaims, damages, liabilities, and expenses, including reasonable costs of investigation, counsel fees, and disbursements that may be imposed on demand, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) for any expenses referred to in this Agreement Escrow Agent or in any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by the Collateral Escrow Agent in connection with the enforcement and protection performance of the rights of the Collateral Agent and the Holders which shall his/her duties under or in connection with this Agreement, including but not have been paid limited to any litigation arising from or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement or involving its subject matter. f. Parent and the Securityholders' Agent undertake to instruct the Escrow Agent in writing with respect to the Escrow Agent's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Escrow Agent under this Agreement. Parent and the Securityholders' Agent, jointly and severally, agree to indemnify and hold the Escrow Agent harmless from any document securing liability on account of taxes, assessments or other governmental charges, including without limitation the Obligations withholding or deduction or the enforcement failure to withhold or deduct same, and protection of the rights of Holdersany liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the extent Escrow Agent may be or become subject in connection with or which arises out of this Agreement, including costs and expenses (including reasonable legal fees), interest and penalties. Notwithstanding the same shall not have been reimbursed by any Loan Party foregoing, no distributions will be made unless the Escrow Agent is supplied with an original, signed W-8 form, W-9 form or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable their equivalent prior to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Persondistribution.

Exculpatory Provisions; Indemnification. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents. Without limiting the generality of the foregoing, the Collateral Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Required Holders (or such other number or percentage of Holders as shall be expressly provided for herein or in the other Note Documents), provided, however, that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or applicable Requirements of Law; (c) shall not, except as expressly set forth herein and in the other Note Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity; (d) shall not be liable to any Holder for any action taken or not taken by it the absence of its own gross negligence or willful misconduct; (e) shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Collateral Agent in its capacity as such by a Loan Party or a Holder; and (f) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, the Security Agreement or any other Note Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in any Note Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent in its capacity as such. By accepting the benefits of this Agreement, each Holder severally agrees (A) to reimburse the Collateral Agent, on demand, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) for any expenses referred to in this Agreement or in any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by the Collateral Agent in connection with the enforcement and protection of the rights of the Collateral Agent and the Holders which shall not have been paid or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement 50 or in any document securing the Obligations or the enforcement and protection of the rights of Holders, to the extent the same shall not have been reimbursed by any Loan Party or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Person.

Exculpatory Provisions; Indemnification. a. The Collateral Escrow Agent shall not have any be obligated only for the performance of such duties or obligations except those expressly as are specifically set forth herein and herein, as are set forth in the other Note Documents. Without limiting the generality Article VII of the foregoingReorganization Agreement and as are set forth in any additional written escrow instructions, the Collateral Agent: (a) which instructions shall not be subject expose Escrow Agent to any fiduciary liability additional to that assumed by Escrow Agent hereunder or other implied dutiesunder Article VII of the Reorganization Agreement, regardless which the Escrow Agent may receive after the date of whether a Default has occurred this Agreement which are signed by an officer of Parent and is continuing; (b) the Securityholder Agent, and may rely and shall not be protected in relying or refraining from acting on any instrument reasonably believed to be genuine and to have any duty to take any discretionary action been signed or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or presented by the other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Required Holders (proper party or such other number or percentage of Holders as shall be expressly provided for herein or in the other Note Documents), provided, however, that the Collateral parties. The Escrow Agent shall not be required to take liable for any action that, act done or omitted hereunder as Escrow Agent while acting in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or applicable Requirements of Law; (c) shall not, except as expressly set forth herein good faith and in the other Note Documents, have any duty to discloseexercise of reasonable judgment, and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith. b. The Escrow Agent is hereby expressly authorized to comply with and obey orders, judgments or decrees of any court of law, notwithstanding any notices, warnings or other communications from any party or any other person to the contrary. In case the Escrow Agent obeys or complies with any such order, judgment or decree of any court, the Escrow Agent shall not be liable to any of the parties hereto or to any other person by reason of such compliance, notwithstanding any such order, judgment or decree being subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without jurisdiction. c. The Escrow Agent shall not be liable in any respect on account of the identity, authority or rights of the parties executing or delivering or purporting to execute or deliver this Agreement or any documents or papers deposited or called for hereunder. d. The Escrow Agent shall not be liable for the failure expiration of any rights under any statute of limitations with respect to disclose, any information relating to the Loan Parties this Agreement or any of its Affiliates that is communicated to or obtained by documents deposited with the Person serving as Collateral Agent or Escrow Agent. e. In performing any of its Affiliates in any capacity; (d) shall not be liable to any Holder for any action taken or not taken by it the absence of its own gross negligence or willful misconduct; (e) shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Collateral Agent in its capacity as such by a Loan Party or a Holder; and (f) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in duties under or in connection with this Agreement, the Security Agreement Escrow Agent shall not be liable to any party for damages, losses, or any other Note Documentexpenses, (ii) except for gross negligence or willful misconduct on the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any part of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of Escrow Agent. The Escrow Agent shall not incur any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in any Note Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent in its capacity as such. By accepting the benefits of this Agreement, each Holder severally agrees such liability for (A) any act or failure to reimburse the Collateral Agentact made or omitted in good faith, on demandor (B) any action taken or omitted in reliance upon any instrument, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) including any written statement or affidavit provided for any expenses referred to in this Agreement that the Escrow Agent shall in good faith believe to be genuine, nor will the Escrow Agent be liable or in responsible for punitive, special or consequential damages or for forgeries, fraud, impersonations, or determining the scope of any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by representative authority. In addition, the Collateral Escrow Agent may consult with the legal counsel in connection with the enforcement and protection of the rights of the Collateral Agent and the Holders which shall not have been paid Escrow Agent's duties under or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement or and shall be fully protected in any document securing act taken, suffered, or permitted by him/her in good faith in accordance with the Obligations advice of counsel. The Escrow Agent is not responsible for determining and verifying the authority of any person acting or purporting to act on behalf of any party to this Agreement. f. If any controversy arises between the enforcement parties to this Agreement, or with any other party, concerning the subject matter of this Agreement, its terms or conditions, the Escrow Agent will not be required to determine the controversy or to take any action regarding it. The Escrow Agent may hold all documents and protection shares of Parent Common Stock and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in the Escrow Agent's discretion, the Escrow Agent may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Escrow Agent will not be liable for damage. Furthermore, the Escrow Agent may at its option, and at the expense of the Escrow Fund, file an action of interpleader requiring the parties to answer and litigate any claims and rights of Holders, to the extent the same shall not have been reimbursed by any Loan Party or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Person.among

Exculpatory Provisions; Indemnification. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Note Documents. Without limiting the generality of the foregoing, the Collateral Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;; 38 (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Note Documents that the Collateral Agent is required to exercise as directed in writing by the Required Holders (or such other number or percentage of Holders as shall be expressly provided for herein or in the other Note Documents), provided, however, that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Note Document or applicable Requirements of Law; (c) shall not, except as expressly set forth herein and in the other Note Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained by the Person serving as Collateral Agent or any of its Affiliates in any capacity; (d) shall not be liable to any Holder for any action taken or not taken by it the absence of its own gross negligence or willful misconduct; (e) shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Collateral Agent in its capacity as such by a Loan Party or a Holder; and (f) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, the Security Agreement or any other Note Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Note Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in any Note Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent in its capacity as such. By accepting the benefits of this Agreement, each Holder severally agrees (A) to reimburse the Collateral Agent, on demand, in the amount of its ratable share from time to time (based on the principal amount of the Notes of such Holder) for any expenses referred to in this Agreement or in any document securing Obligations owed to such Holder and/or any other reasonable expenses incurred by the Collateral Agent in connection with the enforcement and protection of the rights of the Collateral Agent and the Holders which shall not have been paid or reimbursed by any Loan Party or paid from the proceeds of Collateral or as provided herein or therein and (B) to indemnify and hold harmless the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys on demand, in the amount of such ratable share, from and against any and all liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Agreement and/or incurred by the Collateral Agent in connection with this Agreement or in any document securing the Obligations or the enforcement and protection of the rights of Holders, to the extent the same shall not have been reimbursed by any Loan Party or paid from the proceeds of Collateral as provided herein; provided, however, in each case, that no Holder shall be liable to the Collateral Agent and its Affiliates and its and their respective directors, officers, employees, agents and attorneys for any portion of such expenses, liabilities, Taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of such Person.