Common use of Liability of Resident Delaware Trustee Clause in Contracts

Liability of Resident Delaware Trustee. Except as otherwise provided in this Article II, in accepting the trust created hereby, Wilmington Trust Company (or any successor Resident Delaware Trustee appointed pursuant to Section 2.1(b) or Section 2.5 hereof) acts solely as Resident Delaware Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company (or any successor Resident Delaware Trustee) by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction thereof. The Resident Delaware Trustee shall not be liable or accountable hereunder to the Trust or to any other Person or under any other agreement to which the Trust is a party, except for the Resident Delaware Trustee’s own actual fraud or willful misconduct. In particular, but not by way of limitation: (a) The Resident Delaware Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of any portion of the Trust Estate; (b) The Resident Delaware Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Manager, the Independent Committee or the Liquidating Trustee; (c) The Resident Delaware Trustee shall not have any liability for the acts or omissions of the Manager, the Independent Committee or their delegatees; (d) The Resident Delaware Trustee shall have no responsibility, and shall not be liable for its failure, to supervise the performance of any obligations of, or to choose, the Manager, the Independent Committee or their delegatees or any DTC Participant or Indirect Participant; (e) No provision of this Trust Agreement shall require the Resident Delaware Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder; (f) Under no circumstances shall the Resident Delaware Trustee be liable for indebtedness evidenced by or other obligations of the Trust arising under this Trust Agreement or any other agreements to which the Trust is a party; (g) The Resident Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or any other agreements to which the Trust is a party, at the request, order or direction of the Manager unless the Manager has offered to the Resident Delaware Trustee (in its capacity as trustee and individually) security or indemnity satisfactory to the Resident Delaware Trustee against the costs, expenses and liabilities that may be incurred by the Resident Delaware Trustee (including the reasonable fees and expenses of its counsel) therein or thereby; (h) Notwithstanding anything contained herein to the contrary, the Resident Delaware Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will: (i) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivision thereof in existence as of the date hereof, other than the State of Delaware, becoming payable by the Resident Delaware Trustee; or (iii) subject the Resident Delaware Trustee to personal jurisdiction, other than in the State of Delaware, for causes of action arising from personal acts unrelated to the consummation of the transactions by the Resident Delaware Trustee, as the case may be, contemplated hereby; and (i) Except as otherwise expressly provided herein, no RD Indemnified Party shall have any duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members , the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not eliminate any implied contractual covenant of good faith and fair dealing. Further, except as otherwise expressly provided herein, no RD Indemnified Party shall have any liabilities for breach of contract or breach of duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not limit or eliminate liability for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. (j) To the extent that, at law or in equity, the Resident Delaware Trustee has duties and liabilities relating to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or any other Person, the Resident Delaware Trustee acting under this Trust Agreement shall not be liable to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or such other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict or eliminate the Resident Delaware Trustee’s duties and liabilities otherwise existing at law or in equity, are agreed by the Trust, the Manager, the Independent Committee Members, the Shareholders and the Beneficial Owners to replace such other duties and liabilities of the Resident Delaware Trustee.

Liability of Resident Delaware Trustee. Except as otherwise provided in this Article II, in accepting the trust created hereby, Wilmington Trust Company (or any successor Resident Delaware Trustee appointed pursuant to Section 2.1(b) or Section 2.5 2.5(a) hereof) acts solely as Resident Delaware Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company (or any successor Resident Delaware Trustee) by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction thereof. The Resident Delaware Trustee shall not be liable or accountable hereunder to the Trust or to any other Person or under any other agreement to which the Trust is a party, except for the Resident Delaware Trustee’s own actual fraud or willful misconduct. In particular, but not by way of limitation: (a) The Resident Delaware Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of any portion of the Trust Estate; (b) The Resident Delaware Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Manager, the Independent Committee or the Liquidating Trustee; (c) The Resident Delaware Trustee shall not have any liability for the acts or omissions of the Manager, the Independent Committee or their delegatees; (d) The Resident Delaware Trustee shall have no responsibility, and shall not be liable for its failure, to supervise the performance of any obligations of, or to choose, the Manager, the Independent Committee or their delegatees or any DTC Participant or Indirect Participant; (e) No provision of this Trust Agreement shall require the Resident Delaware Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder; (f) Under no circumstances shall the Resident Delaware Trustee be liable for indebtedness evidenced by or other obligations of the Trust arising under this Trust Agreement or any other agreements to which the Trust is a party; (g) The Resident Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or any other agreements to which the Trust is a party, at the request, order or direction of the Manager unless the Manager has offered to the Resident Delaware Trustee (in its capacity as trustee and individually) security or indemnity satisfactory to the Resident Delaware Trustee against the costs, expenses and liabilities that may be incurred by the Resident Delaware Trustee (including the reasonable fees and expenses of its counsel) therein or thereby; (h) Notwithstanding anything contained herein to the contrary, the Resident Delaware Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will: (i) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivision thereof in existence as of the date hereof, other than the State of Delaware, becoming payable by the Resident Delaware Trustee; or (iii) subject the Resident Delaware Trustee to personal jurisdiction, other than in the State of Delaware, for causes of action arising from personal acts unrelated to the consummation of the transactions by the Resident Delaware Trustee, as the case may be, contemplated hereby; and (i) Except as otherwise expressly provided herein, no RD Indemnified Party shall have any duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members Members, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not eliminate any implied contractual covenant of good faith and fair dealing. Further, except as otherwise expressly provided herein, no RD Indemnified Party shall have any liabilities for breach of contract or breach of duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not limit or eliminate liability for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. (j) To the extent that, at law or in equity, the Resident Delaware Trustee has duties and liabilities relating to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or any other Person, the Resident Delaware Trustee acting under this Trust Agreement shall not be liable to the Trust, the Manager, the Independent Committee Members, the Shareholders, the Beneficial Owners or such other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict or eliminate the Resident Delaware Trustee’s duties and liabilities otherwise existing at law or in equity, are agreed by the Trust, the Manager, the Independent Committee Members, the Shareholders and the Beneficial Owners to replace such other duties and liabilities of the Resident Delaware Trustee.

Liability of Resident Delaware Trustee. Except as otherwise provided in this Article II, in accepting the trust created hereby, Wilmington Trust Company (or any successor Resident Delaware Trustee appointed pursuant to Section 2.1(b) or Section 2.5 hereof) acts solely as Resident Delaware Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company (or any successor Resident Delaware Trustee) by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction thereof. The Resident Delaware Trustee shall not be liable or accountable hereunder to the Trust or to any other Person or under any other agreement to which the Trust is a party, except for the Resident Delaware Trustee’s own actual fraud or willful misconduct. In particular, but not by way of limitation: (a) The Resident Delaware Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of any portion of the Trust Estate; (b) The Resident Delaware Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Manager, the Independent Committee Board of Trustees or the Liquidating Trustee; (c) The Resident Delaware Trustee shall not have any liability for the acts or omissions of the Manager, the Independent Committee Board of Trustees or their delegatees; (d) The Resident Delaware Trustee shall have no responsibility, and shall not be liable for its failure, to supervise the performance of any obligations of, or to choose, the Manager, the Independent Committee Board of Trustees or their delegatees or any DTC Participant or Indirect Participant; (e) No provision of this Trust Agreement shall require the Resident Delaware Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder; (f) Under no circumstances shall the Resident Delaware Trustee be liable for indebtedness evidenced by or other obligations of the Trust arising under this Trust Agreement or any other agreements to which the Trust is a party; (g) The Resident Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or any other agreements to which the Trust is a party, at the request, order or direction of the Manager unless the Manager has offered to the Resident Delaware Trustee (in its capacity as trustee and individually) security or indemnity satisfactory to the Resident Delaware Trustee against the costs, expenses and liabilities that may be incurred by the Resident Delaware Trustee (including the reasonable fees and expenses of its counsel) therein or thereby; (h) Notwithstanding anything contained herein to the contrary, the Resident Delaware Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will: (i) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivision thereof in existence as of the date hereof, other than the State of Delaware, becoming payable by the Resident Delaware Trustee; or (iii) subject the Resident Delaware Trustee to personal jurisdiction, other than in the State of Delaware, for causes of action arising from personal acts unrelated to the consummation of the transactions by the Resident Delaware Trustee, as the case may be, contemplated hereby; and (i) Except as otherwise expressly provided herein, no RD Indemnified Party shall have any duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members Board of Trustees, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not eliminate any implied contractual covenant of good faith and fair dealing. Further, except as otherwise expressly provided herein, no RD Indemnified Party shall have any liabilities for breach of contract or breach of duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not limit or eliminate liability for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. (j) To the extent that, at law or in equity, the Resident Delaware Trustee has duties and liabilities relating to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or any other Person, the Resident Delaware Trustee acting under this Trust Agreement shall not be liable to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or such other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict or eliminate the Resident Delaware Trustee’s duties and liabilities otherwise existing at law or in equity, are agreed by the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders and the Beneficial Owners to replace such other duties and liabilities of the Resident Delaware Trustee.

Liability of Resident Delaware Trustee. Except as otherwise provided in this Article II, in accepting the trust created hereby, Wilmington Trust Company (or any successor Resident Delaware Trustee appointed pursuant to Section 2.1(b) or Section 2.5 hereof) acts solely as Resident Delaware Trustee hereunder and not in its individual capacity, and all Persons having any claim against Wilmington Trust Company (or any successor Resident Delaware Trustee) by reason of the transactions contemplated by this Trust Agreement and any other agreement to which the Trust is a party shall look only to the Trust Estate for payment or satisfaction thereof. The Resident Delaware Trustee shall not be liable or accountable hereunder to the Trust or to any other Person or under any other agreement to which the Trust is a party, except for the Resident Delaware Trustee’s own actual fraud or willful misconduct. In particular, but not by way of limitation: (a) The Resident Delaware Trustee shall have no liability or responsibility for the validity or sufficiency of this Trust Agreement or for the form, character, genuineness, sufficiency, value or validity of any portion of the Trust Estate; (b) The Resident Delaware Trustee shall not be liable for any actions taken or omitted to be taken by it in accordance with the instructions of the Manager, the Independent Committee Board of Trustees or the Liquidating Trustee; (c) The Resident Delaware Trustee shall not have any liability for the acts or omissions of the Manager, the Independent Committee Board of Trustees or their delegatees; (d) The Resident Delaware Trustee shall have no responsibility, and shall not be liable for its failure, to supervise the performance of any obligations of, or to choose, the Manager, the Independent Committee Board of Trustees or their delegatees or any DTC Participant or Indirect Participant; (e) No provision of this Trust Agreement shall require the Resident Delaware Trustee to act or expend or risk its own funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder; (f) Under no circumstances shall the Resident Delaware Trustee be liable for indebtedness evidenced by or other obligations of the Trust arising under this Trust Agreement or any other agreements to which the Trust is a party; (g) The Resident Delaware Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement, or to institute, conduct or defend any litigation under this Trust Agreement or any other agreements to which the Trust is a party, at the request, order or direction of the Manager unless the Manager has offered to the Resident Delaware Trustee (in its capacity as trustee and individually) security or indemnity satisfactory to the Resident Delaware Trustee against the costs, expenses and liabilities that may be incurred by the Resident Delaware Trustee (including the reasonable fees and expenses of its counsel) therein or thereby; (h) Notwithstanding anything contained herein to the contrary, the Resident Delaware Trustee shall not be required to take any action in any jurisdiction other than in the State of Delaware if the taking of such action will: (i) require the consent or approval or authorization or order of or the giving of notice to, or the registration with or taking of any action in respect of, any state or other governmental authority or agency of any jurisdiction other than the State of Delaware; (ii) result in any fee, tax or other governmental charge under the laws of any jurisdiction or any political subdivision thereof in existence as of the date hereof, other than the State of Delaware, becoming payable by the Resident Delaware Trustee; or (iii) subject the Resident Delaware Trustee to personal jurisdiction, other than in the State of Delaware, for causes of action arising from personal acts unrelated to the consummation of the transactions by the Resident Delaware Trustee, as the case may be, contemplated hereby; and (i) Except as otherwise expressly provided herein, no RD Indemnified Party shall have any duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee Members Board of Trustees, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not eliminate any implied contractual covenant of good faith and fair dealing. Further, except as otherwise expressly provided herein, no RD Indemnified Party shall have any liabilities for breach of contract or breach of duties (including fiduciary duties) to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or any other Person; provided that this Section 2.6(i) does not limit or eliminate liability for any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. (j) To the extent that, at law or in equity, the Resident Delaware Trustee has duties and liabilities relating to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or any other Person, the Resident Delaware Trustee acting under this Trust Agreement shall not be liable to the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders, the Beneficial Owners or such other Person for its good faith reliance on the provisions of this Trust Agreement. The provisions of this Trust Agreement, to the extent that they restrict or eliminate the Resident Delaware Trustee’s duties and liabilities otherwise existing at law or in equity, are agreed by the parties hereto, the Trust, the Manager, the Independent Committee MembersBoard of Trustees, the Shareholders and the Beneficial Owners to replace such other duties and liabilities of the Resident Delaware Trustee.