Standard of Care; Exculpation. (a) As used herein, the term “Trust Indemnified Party” shall mean each Director, the Delaware Trustee, the Trust Protector, the Special Master, the Tribal Allocation Appointees, and each of their respective members, officers, employees, agents, consultants, lawyers, advisors or professionals (collectively, the “Trust Indemnified Parties”).
Standard of Care; Exculpation. Neither the Litigation Trustee, nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the Litigation Trustee (each, an “Exculpated Party” and collectively, the “Exculpated Parties”) shall be liable for any losses, claims, damages, liabilities, obligations, settlements, proceedings, suits, judgments, causes of action, litigation, actions, or investigations (whether civil or administrative and whether sounding in tort, contract or otherwise), penalties, costs, and expenses, including reasonable fees and disbursements (collectively referred to herein as “Losses”), whether or not in connection with litigation in which any Exculpated Party is a party, or administering or enforcing this Litigation Trust Agreement (including these exculpation provisions), as and when imposed on the Litigation Trustee, incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Litigation Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Litigation Trust Agreement, the Plan, or the Confirmation Order, or as may arise by reason of any action, omission or error of an Exculpated Party; provided, however, that the foregoing limitation shall not apply to any Losses suffered or incurred by any Holder of a Claim or Interest or Beneficiary that are determined by a Final Order of the Bankruptcy Court to have been caused by the intentional fraud, willful misconduct or gross negligence of such Exculpated Party. Every act taken or omitted, power exercised or obligation assumed by the Litigation Trust or any other Exculpated Party pursuant to the provisions of this Litigation Trust Agreement, the Plan, or the Confirmation Order shall be held to be taken or omitted, exercised, or assumed, as the case may be, by the Litigation Trust or any Exculpated Party acting for and on behalf of the Litigation Trust and not otherwise; provided, however, that none of the foregoing Entities are deemed to be responsible for any other such Entities’ actions or inactions. Except as provided in the first proviso of the first sentence of this Section, every Entity contracting or otherwise dealing with or having any relationship with the Litigation Trust or any Exculpated Party shall have recourse only to the Litigation Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, ...
Standard of Care; Exculpation. None of the Litigation Trust Advisory Board, its members, designees or professionals, nor any of their duly designated agents or representatives, shall be liable for the act or omission of any other member, designee, professional, agent or representative of the Litigation Trust Advisory Board, nor shall the Litigation Trust Advisory Board or any of its members be liable for any act or omission taken or omitted to be taken by the Litigation Trust Advisory Board, except in the event that there is a Final Order of a court of competent jurisdiction determining that the Litigation Trust Advisory Board or any of its members committed fraud, self-dealing, intentional misrepresentation, gross negligence, or willful misconduct. The Litigation Trust Advisory Board and each of its members may, in connection with the performance of its functions, and in its sole and absolute discretion, consult with its attorneys, accountants, financial advisors and agents, and shall not be liable for any act taken, omitted to be taken, or suffered to be done in good faith in accordance with advice or opinions rendered by such Persons. Notwithstanding such authority, neither the Litigation Trust Advisory Board nor any of its members shall be under any obligation to consult with its attorneys, accountants, financial advisors or agents, and its good faith determination not to do so shall not result in the imposition of liability on the Litigation Trust Advisory Board or, as applicable, its members or designees, unless such determination is based on gross negligence, recklessness, willful misconduct, or knowing violation of law.
Standard of Care; Exculpation. Neither the Trustee nor any of its duly designated agents or representatives or professionals shall be liable for any act or omission taken or omitted to be taken by the Trustee in good faith, other than (i) acts or omissions resulting from the Trustee’s or any such agent’s, representative’s or professional’s fraud, gross negligence, bad faith, willful misconduct or knowing violation of law or (ii) acts or omissions from which the Trustee or any such agent, representative or professional derived an improper personal benefit. The Trustee may, in connection with the performance of his functions, and in his sole and absolute discretion, consult with his attorneys, accountants, financial advisors and agents, and shall not be liable for any act taken, omitted to be taken, or suffered to be done in accordance with advice or opinions rendered by such persons. Notwithstanding such authority, the Trustee shall be under no obligation to consult with his attorneys, accountants, financial advisors or agents, and his good faith determination not to do so shall not result in the imposition of liability on the Trustee, unless such determination is based on fraud, gross negligence, bad faith, willful misconduct or knowing violation of law. No amendment, modification or repeal of this Section 3.16 shall adversely affect any right or protection of the Trustee or any of his agents, representatives or professionals that exists at the time of such amendment, modification or repeal. LITIGATION TRUST GOVERNING TRUST BOARD
Standard of Care; Exculpation. Neither the Litigation Trustee nor any of the Litigation Trustee’s duly designated agents or representatives or professionals shall be liable for any act or omission taken or omitted to be taken by the Litigation Trustee except in the event that there is a Final Order of a court of competent jurisdiction determining that the Litigation Trustee committed fraud, self-dealing, intentional misrepresentation, gross negligence, or willful misconduct. The Litigation Trustee may, in connection with the performance of the Litigation Trustee’s functions, and in the Litigation Trustee’s sole and absolute discretion, consult with the Litigation Trustee’s attorneys, accountants, financial advisors and agents, and shall not be liable for any act taken, omitted to be taken, or suffered to be done in accordance with advice or opinions rendered by such Persons. Notwithstanding such authority, the Litigation Trustee shall be under no obligation to consult with the Litigation Trustee’s attorneys, accountants, financial advisors or agents, and the Litigation Trustee’s good faith determination not to do so shall not result in the imposition of liability on the Litigation Trustee, unless such determination is based on gross negligence, recklessness, willful misconduct, or knowing violation of law.
Standard of Care; Exculpation. Neither the Trustee nor any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee shall be personally liable in connection with the affairs of the Trust to any person or entity except for such acts or omissions of the Trustee as shall constitute fraud, willful misconduct or gross negligence. The Trustee’s duties shall be limited to those expressly set forth herein and the Trustee shall not be bound by or subject to any other agreement (including, but not limited to, the Transaction Agreement and the LPA). Subject to the foregoing:
(a) The Trustee shall be entitled to assume the validity and enforceability of all documents provided to it, and reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties, without further inquiry.
(b) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it (ii) in accordance with the instructions provided hereunder or (ii) as may be required under applicable law.
(c) The Trustee shall not be responsible for or in respect of and makes no representation as to the validity or sufficiency of any provision of this Agreement or for the due execution hereof by the other parties or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate.
(d) Whenever the Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision of this Agreement, the Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to Holdings requesting instruction as to the course of action to be adopted, and, to the extent the Trustee acts in good faith in accordance with any such instruction from Holdings, the Trustee shall not be liable on account of such action to any person. If the Trustee shall not have received appropriate instructions within 10 calendar days of sending such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action which is consistent, in its view, with this Agreement, and the Trustee shall have no liability to any person for any such action or inaction.
(e) The Trustee shall incur no liability to anyone in acting upon any signature,...
Standard of Care; Exculpation. Each Trustee shall perform the duties and obligations imposed on such Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The Trustees shall not be liable for any Losses to which they may become subject by reason of any acts or omissions of the Trustees (or consequences of such acts or omissions) in the creation, establishment, operation or termination of the Trust, the negotiation of this Trust Agreement and the performance of their duties and obligations under this Trust Agreement, except for such acts or omissions that result in a Determination of Egregious Conduct by such Trustee. Except as expressly set forth above, the Trustees shall be defended, held harmless and indemnified from the Creditor Trust Assets as a Trust Administrative Expense from and against any and all Losses to which either Trustee may be subject by reason of the acts or omissions of such Trustee (or consequences of such acts or omissions) in the creation, establishment, operation and termination of the Trust, the negotiation of this Trust Agreement, the transactions contemplated by this Trust Agreement and the performance of their duties and obligations under this Trust Agreement. The officers, directors, shareholders, designees, employees, Professionals, representatives and agents of each Trustee and the Trust (collectively, the “Trustee Indemnitees”) shall likewise be defended, held harmless and indemnified to the fullest extent set forth herein and provided to the Trustees. As security for any amounts due and owing to the Trustee and the Trustee Indemnitees hereunder, each Trustee and Trustee Indemnitee shall have a lien against the Creditor Trust Assets, which lien(s) shall be prior to the rights of the Beneficiaries. The obligations of the Trust and the benefits to the Trustees and Trustee Indemnitees under this Section 7.7 shall survive the termination of this Trust Agreement and the resignation and/or removal of a Trustee or Trustee Indemnitee. To the fullest extent permitted by law, expenses to be incurred by a Trustee or Trustee Indemnitee shall, from time to time, be advanced by, or on behalf of, the Trust prior to the final disposition of any matter upon receipt by the Trust of an undertaking by, or on behalf of, such Person to repay such amount if it shall be determined that the Person is not entitled to be indemnified under this Section.
Standard of Care; Exculpation. None of the Plan Advisory Committee, its members, designees or professionals, nor any of their duly designated agents or representatives, shall be liable for the act or omission of any other member, agent or representative of the Plan Advisory Committee, nor shall the Plan Advisory Committee or any of its members be liable for any act or omission taken or omitted to be taken by the Plan Advisory Committee in good faith, other than damages solely caused by the acts or omissions resulting from the Plan Advisory Committee’s own willful misconduct or knowing violation of law. The Plan Advisory Committee and each of its members may, in connection with the performance of its functions, and in its sole and absolute discretion, consult with its attorneys, accountants, financial advisors and agents, and shall not be liable for any act taken, omitted to be taken, or suffered to be done in good faith in accordance with advice or opinions rendered by such Persons. Notwithstanding such authority, neither the Plan Advisory Committee nor any of its members shall be under any obligation to consult with its attorneys, accountants, financial advisors or agents, and its good faith determination not to do so shall not result in the imposition of liability on the Plan Advisory Committee or, as applicable, its members or designees, unless such determination is based solely on willful misconduct or knowing violation of law.
Standard of Care; Exculpation. Neither the Trustee, the members of the Trust Oversight Board, nor any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee or any member of the Trust Oversight Board shall be liable for losses, claims, damages, liabilities or expenses in connection with the affairs of the Trust to any Holder of a Claim or Equity Interest or Beneficiary of the Trust, or any other person, for the acts or omissions of the Trustee or the Trust Oversight Board; provided, however, that the foregoing limitation shall not apply to any losses, claims, damages, liabilities or expenses suffered or incurred by any Holder of a Claim or Equity Interest or Beneficiary that are found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the fraud, gross negligence or willful misconduct of the Trustee, the Trust Oversight Board or any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee or any member of the Trust Oversight Board. Every act done, power exercised or obligation assumed by the Trust, the Trustee, the Trust Oversight Board or any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee or any member of the Trust Oversight Board pursuant to the provisions of this Trust Agreement shall be held to be done, exercised or assumed, as the case may be, by the Trust, the Trustee, the Trust Oversight Board or any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee or any member of the Trust Oversight Board acting for and on behalf of the Trust and not otherwise. Except as provided in the proviso of the first sentence of this Section 4.1 with respect to any Holder of a Claim or Equity Interest or the Beneficiary, every person, firm, corporation or other entity contracting or otherwise dealing with or having any relationship with the Trust, the Trustee, the Trust Oversight Board or any director, officer, affiliate, employee, employer, professional, agent or representative of the Trustee or any member of the Trust Oversight Board shall have recourse only to the General Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships and the Trust, the Trustee, the Trust Oversight Board or any director, officer, affiliate, employee, employer, professi...
Standard of Care; Exculpation. Neither the Liquidating Trustee nor any of his or her duly designated agents or representatives or professionals shall be liable for any act or omission taken or omitted to be taken by the Liquidating Trustee in good faith, other than acts or omissions solely resulting from the Liquidating Trustee’s own gross negligence, recklessness, willful misconduct, or knowing violation of law. The Liquidating Trustee may, in connection with the performance of his or her functions, and in his or her sole and absolute discretion, consult with his or her attorneys, accountants, financial advisors and agents, and shall not be liable for any act taken, omitted to be taken, or suffered to be done in accordance with advice or opinions rendered by such Persons. Notwithstanding such authority, the Liquidating Trustee shall be under no obligation to consult with his or her attorneys, accountants, financial advisors or agents, and his or her good faith determination not to do so shall not result in the imposition of liability on the Liquidating Trustee, unless such determination is based solely on gross negligence, recklessness, willful misconduct, or knowing violation of law.
