Common use of Limitation of the Escrow Agent’s Liability Clause in Contracts

Limitation of the Escrow Agent’s Liability. Responsibilities of the Escrow Agent. The Escrow Agent's responsibility and ------------------------------------ liability under this Agreement shall be limited as follows: (i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Notes or the Indenture Trustee from time to time as a consequence of performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect, or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by provisions of any agreement beyond the specific term hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or Marketable Securities held by it hereunder, including without limitation, any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Indenture Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request -------- ------- that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be liable to the Company for acting without the Company's consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least two (2) Business Days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such property or funds, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.

Limitation of the Escrow Agent’s Liability. Responsibilities (a) The Purchaser and the Stockholders’ Representative (solely in its representative capacity on behalf of the Stockholders) agree jointly and severally to indemnify, defend, hold harmless, pay or reimburse the Escrow Agent. The Agent and its affiliates and their respective successors, assigns, directors, agents and employees (the “Escrow Agent's responsibility Agent Indemnitees”) from and ------------------------------------ liability against any and all losses and any other expenses, fees or charges of any character or nature, including, without limitation, attorney’s fees and expenses, which any Escrow Agent Indemnitee may incur or with which it may be threatened by reason of acting as or on behalf of Escrow Agent under this Agreement shall be limited as follows: or arising out of or in connection with (i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the Agent’s performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Notes or the Indenture Trustee from time to time as a consequence of performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect, or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by provisions of any agreement beyond the specific term hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or Marketable Securities held by it hereunder, including without limitation, any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Indenture Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request -------- ------- that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be liable , except to the Company for acting without the Company's consent in accordance with extent that such a proposal on or after the date specified therein if (i) the specified date is at least two (2) Business Days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such property or funds, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally losses are determined by a court of competent jurisdiction through a final order to have been caused by the gross negligence or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the willful misconduct of such Escrow Agent, or Agent Indemnitee; and (ii) the Escrow Agent shall have having followed any instructions or directions, whether joint or singular, from the Stockholders’ Representative or the Purchaser received in accordance with this Agreement. The Purchaser and the Stockholders’ Representative hereby grant the Escrow Agent a lien on, right of set-off against and security or an indemnity satisfactory interest in the Escrow Fund for the payment of any claim for indemnification, fees, expenses and amounts due to the Escrow Agent sufficient to save or an Escrow Agent Indemnitee. In furtherance of the foregoing, the Escrow Agent harmless is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from and against the Escrow Fund for its own account or for the account of an Escrow Agent Indemnitee any and all loss, liability or expense which amounts due to the Escrow Agent may incur by reason of its actingor to an Escrow Agent Indemnitee under Section 8 or this Section 9. The Escrow Agent may obligations set forth in addition elect in its sole option to commence an interpleader action this Section 9 shall survive the resignation, replacement or seek other judicial relief or orders as removal of the Escrow Agent may deem necessary. No provision or the termination of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderAgreement.

Limitation of the Escrow Agent’s Liability. Responsibilities (a) The Company and the Investors’ Representative (solely in its representative capacity on behalf of the Investors) agree jointly and severally to indemnify, defend, hold harmless, pay or reimburse the Escrow Agent. The Agent and its affiliates and their respective successors, assigns, directors, agents and employees (the “Escrow Agent's responsibility Agent Indemnitees”) from and ------------------------------------ liability against any and all losses and any other expenses, fees or charges of any character or nature, including, without limitation, attorney’s fees and expenses, which any Escrow Agent Indemnitee may incur or with which it may be threatened by reason of acting as or on behalf of Escrow Agent under this Agreement shall or arising _____________________________________________________ 2 NTD: To be limited as follows: the date 5 years from the closing date. Exhibit 10.2 out of or in connection with (i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the Agent’s performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Notes or the Indenture Trustee from time to time as a consequence of performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect, or inform the Company or any third party of any matter referred to above. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by provisions of any agreement beyond the specific term hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or Marketable Securities held by it hereunder, including without limitation, any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. The Escrow Agent shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Indenture Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request -------- ------- that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be liable , except to the Company for acting without the Company's consent in accordance with extent that such a proposal on or after the date specified therein if (i) the specified date is at least two (2) Business Days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such property or funds, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally losses are determined by a court of competent jurisdiction through a final order to have been caused by the gross negligence or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the willful misconduct of such Escrow Agent, or Agent Indemnitee; and (ii) the Escrow Agent shall have having followed any joint instructions or directions from the Investors’ Representative and the Company received in accordance with this Agreement. The Company and the Investors’ Representative hereby grant the Escrow Agent a lien on, right of set-off against and security or an indemnity satisfactory interest in the Escrow Fund for the payment of any claim for indemnification, fees, expenses and amounts due to the Escrow Agent sufficient to save or an Escrow Agent Indemnitee. In furtherance of the foregoing, the Escrow Agent harmless is expressly authorized and directed, but shall not be obligated, to charge against and withdraw from and against the Escrow Fund for its own account or for the account of an Escrow Agent Indemnitee any and all loss, liability or expense which amounts due to the Escrow Agent may incur by reason of its actingor to an Escrow Agent Indemnitee under Section 8 or this Section 9. The Escrow Agent may obligations set forth in addition elect in its sole option to commence an interpleader action this Section 9 shall survive the resignation, replacement or seek other judicial relief or orders as removal of the Escrow Agent may deem necessary. No provision or the termination of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderAgreement.

Limitation of the Escrow Agent’s Liability. Responsibilities of the Escrow AgentRESPONSIBILITIES OF --------------------------------------------------------------- THE ESCROW AGENT. The Escrow Agent's responsibility and ------------------------------------ liability under this ---------------- Agreement shall be limited as follows: (i) the Escrow Agent does not represent, warrant or guaranty to the holders of the Notes from time to time the performance of the Company; (ii) the Escrow Agent shall have no responsibility to the Company or the holders of the Notes or the Indenture Trustee from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Company shall remain solely responsible for all aspects of the Company's business and conduct; and (iv) the Escrow Agent is not obligated to supervise, inspect, inspect or inform the Company or any third party of any matter referred to above; provided that nothing contained in this Section 4 shall limit the -------- liability of the Escrow Agent for breach of its responsibilities as provided in this Agreement. No implied covenants or obligations shall be inferred from this Agreement against the Escrow Agent, nor shall the Escrow Agent be bound by the provisions of any agreement beyond the specific term terms hereof. Specifically and without limiting the foregoing, the Escrow Agent shall in no event have any liability in connection with its investment, reinvestment or liquidation, in good faith and in accordance with the terms hereof, of any funds or Marketable U.S. Government Securities held by it hereunder, including without limitation, limitation any liability for any delay not resulting from gross negligence or willful misconduct in such investment, reinvestment or liquidation, or for any loss of principal or income incident to any such delay. In addition to the extent the Escrow Agent has not received written investment instructions from the Company it shall have no duty to invest any funds deposited in the Escrow Account, and it shall not be liable for any lost interest as a result thereof. The Escrow Agent shall be entitled to rely upon any judicial order or judgment, upon any written opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Company or the Indenture Trustee in compliance with the provisions of this Agreement without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity of service thereof. The Escrow Agent may act in reliance upon any instrument comporting with the provisions of this Agreement or signature believed by it to be genuine and may assume that any person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. At any time time, the Escrow Agent may request in writing an instruction in writing from the Company, and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request -------- ------- that it believes in good faith that such proposed course of action is consistent with another identified provision of this Agreement. The Escrow Agent shall not be liable to the Company for acting without the Company's consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least two (2) Business Days business days after the Company receives the Escrow Agent's request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Company. The Escrow Agent may act pursuant to the written advice of counsel chosen by it with respect to any matter relating to this Agreement and (subject to Section 4(ii4(a)(ii)) shall not be liable for any action taken or omitted in accordance with such advice. The Escrow Agent shall not be called upon to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder. In the event of any ambiguity in the provisions of this Agreement with respect to any funds or property deposited hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such property funds or fundsproperty, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing, satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.