Legal NoRC DRAFT

LEGAL NORC DRAFT

This No Recourse Agreement (the "Agreement") is made and entered into as of by and between , a with principal address at (hereinafter "Provider"), and , a with principal address at (hereinafter "Recipient"). Provider and Recipient are individually a "Party" and together the "Parties."

RECITALS

WHEREAS, Provider has agreed to provide certain assets, services, obligations or payments described as follows: (the "Subject Obligation");

WHEREAS, the Parties desire to define the scope of legal recourse available between them in relation to the Subject Obligation and to limit liability to the extent and in the manner set forth in this Agreement;

WHEREAS, the Parties intend that certain claims, remedies and forms of relief shall be expressly excluded as further provided herein.

NOW, THEREFORE

In consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "No Recourse" means the limitation on remedies and liability set forth in Section 2 of this Agreement. Capitalized terms used in this Agreement and not otherwise defined shall have the meanings ascribed to them in this Section.

1.2 "Excluded Conduct" means willful misconduct, fraud, criminal acts, gross negligence and any other acts expressly carved out in this Agreement.

2. NO RECOURSE; LIMITATION OF LIABILITY

2.1 No Recourse Covenant. Except as provided in Section 2.2, the Parties hereby agree that neither Party, nor any of its owners, members, partners, directors, officers, agents or employees, shall have any recourse, liability or right of recovery against the other Party beyond the express obligations described in this Agreement and any collateral expressly described in writing. The Parties expressly waive any claim for punitive, special, consequential or incidental damages arising out of or relating to the Subject Obligation, whether in contract, tort (including negligence), strict liability or otherwise, except to the extent such damages are not permitted to be waived by applicable law.

2.2 Exceptions to No Recourse. The No Recourse covenant shall not apply to liabilities that arise directly from: (a) a Party's fraud or willful misconduct; (b) criminal acts; (c) gross negligence as determined by a court of competent jurisdiction; or (d) .

3. INDEMNIFICATION

3.1 Indemnity by Provider. Provider shall indemnify, defend and hold harmless Recipient and its affiliates, and their respective officers, directors, employees and agents, from and against any losses, liabilities, claims, damages and expenses (including reasonable attorneys' fees) arising out of or in connection with any breach of Provider's representations, warranties or covenants under this Agreement, except to the extent such loss arises from an action excluded by Section 2.2.

3.2 Indemnity Procedures. The Party seeking indemnification shall promptly notify the indemnifying Party in writing of any claim for which indemnity is sought; provided, however, that failure to give prompt notice shall not relieve the indemnifying Party from its obligations except to the extent such failure materially prejudices the indemnifying Party's ability to defend the claim.

4. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has full power and authority to enter into and perform this Agreement; (c) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action; and (d) this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally.

5. COVENANTS

5.1 Conduct. Each Party covenants to act in good faith in the exercise of its rights and performance of obligations under this Agreement and to refrain from taking any action that would frustrate the limited-remedy structure established herein.

5.2 Further Assurances. Each Party will execute and deliver such further instruments and take such further actions as may be reasonably necessary to carry out the provisions and purposes of this Agreement.

6. REMEDIES; LIMITATION

6.1 Exclusive Remedies. Except for matters covered by Section 2.2, the Parties agree that the exclusive remedies for any breach of this Agreement shall be monetary damages and any remedies expressly provided in this Agreement. Neither Party shall be liable for punitive or exemplary damages unless such damages are awarded for conduct that is an Exception to No Recourse.

6.2 Mitigation. The Party claiming damages shall use commercially reasonable efforts to mitigate such damages.

7. ASSIGNMENT

No Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that either Party may assign this Agreement to an affiliate or to a successor by way of merger, consolidation or sale of substantially all of its assets without the other Party's consent.

8. NOTICES

Notices to Provider

Notices to Recipient

All notices, demands, consents and other communications required or permitted hereunder shall be in writing and shall be deemed given when delivered personally, sent by certified mail (return receipt requested), nationally recognized overnight courier, or by electronic means with confirmation of receipt to the addresses set forth above or to such other address as a Party may designate in writing.

9. AMENDMENT; WAIVER

This Agreement may be amended only by a written instrument signed by both Parties. No waiver of any term or condition shall be effective unless in writing and signed by the Party granting the waiver. A waiver on one occasion shall not be construed as a waiver on any other occasion.

10. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of without regard to rules governing conflicts of law.

11. ENTIRE AGREEMENT

This Agreement, together with any schedules or exhibits hereto expressly incorporated by reference, constitutes the entire agreement and understanding between the Parties with respect to the Subject Obligation and supersedes all prior and contemporaneous agreements, negotiations, representations and understandings, whether written or oral, relating thereto.

12. SEVERABILITY

If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that achieves, to the extent possible, the original economic, legal and commercial intent of the Parties.

13. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Facsimile or electronic signatures shall be deemed original signatures for all purposes.

SIGNATURES

The Parties have executed this Agreement as of the date first written above.

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