Common use of Standard of Care; Indemnification; Exculpation Clause in Contracts

Standard of Care; Indemnification; Exculpation. The Trustee shall perform the duties and obligations imposed on the Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The Trustee shall not be liable to the Trust, to any Beneficiary, to any holder of a Claim or to any other Person (or any predecessor or successor thereto) for any reason whatsoever, except for such of its own acts as shall constitute willful misconduct or gross negligence as determined by Final Order of a court with competent jurisdiction. Except as aforesaid, the Trustee shall, to the fullest extent permitted by applicable law, be defended, held harmless and indemnified from time to time from the Trust Assets (but not from or by the Beneficiaries or any of the parties released in the Plan) against any and all losses, claims, costs, expenses and liabilities to which the Trustee may be subject by reason of the Trustee’s execution of the Trustee’s duties under this Trust Agreement; provided, however, that the Trustee shall not be entitled to indemnification if and to the extent the Trustee is found by a Final Order of a court with competent jurisdiction to have committed willful misconduct or gross negligence. If the Trustee becomes involved in any action, proceeding or investigation in connection with any matter arising out of or in connection with the Plan, this Trust Agreement or the affairs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the Trustee’s reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert fees, disbursements and related expenses) incurred in connection therewith, but the Trustee shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses to the extent that it is determined by Final Order of a court of competent jurisdiction that the Trustee engaged in willful misconduct or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurred. The Trustee’s members, stockholders, officers, employees, agents, independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held harmless and indemnified in the same manner and to the same extent. Upon authorization of the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnified. Without limiting the generality of the foregoing, the Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s investment or non-investment of any Trust Assets or any losses with respect to any such investments of the Trust Assets, provided that such investments are made, or the Trustee’s decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement.

Standard of Care; Indemnification; Exculpation. The Trustee shall perform Trustee, acting in the duties and obligations imposed on capacity as the Trustee or in any other capacity contemplated by this Trust Agreement or the Plan, and the members of the Trust Committee shall not be personally liable in connection with reasonable diligence and care under the circumstancesaffairs of the Trust to the Trust or to any Person except for such of the Trustee's or Trust Committee member's acts or omissions as shall constitute fraud, willful misconduct, or gross negligence. The Trustee shall not be personally liable to the Trust, to any Beneficiary, to any holder of a Claim Trust or to any other Person (for the acts or omissions of any predecessor officer, employee, or successor thereto) for any reason whatsoever, except for such agent of its own acts as shall constitute the Trust unless the Trustee acted with gross negligence or willful misconduct in the selection, retention, or gross negligence as determined by Final Order supervision of a court with competent jurisdictionsuch officer, employee, or agent of the Trust. Except as aforesaidin those situations in which the Trustee is not exonerated of personal liability in accordance with the foregoing, the Trustee shall, to (including each former Trustee) shall be indemnified by the fullest extent permitted by applicable law, be defended, Trust against and held harmless and indemnified from time to time from by the Trust Assets (but not from or by the Beneficiaries or any of the parties released in the Plan) against any and all losses, claims, costsdamages, liabilities or expenses (including, without limitation, attorney fees, disbursements, and liabilities related expenses) to which the Trustee may be become subject by reason of in connection with any action, suit, proceeding, or investigation brought or threatened against the Trustee in the Trustee’s execution 's capacity as Trustee, or in any other capacity contemplated by this Trust Agreement or the Plan or in connection with any matter arising out of or related to the Trustee’s duties under Plan, this Trust Agreement; provided, however, that or the Trustee shall not be entitled to indemnification if and to affairs of the extent the Trustee is found by a Final Order of a court with competent jurisdiction to have committed willful misconduct or gross negligenceTrust. If the Trustee becomes involved in any action, proceeding proceeding, or investigation in connection with any matter arising out of or in connection with the Plan, this Trust Agreement or the affairs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the Trustee’s 's reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert feesdisbursements, disbursements and related expenses) incurred in connection therewith, but the Trustee shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses paid to the Trustee to the extent that it is shall be ultimately determined by Final Order of a court of competent jurisdiction that the Trustee engaged in fraud, willful misconduct misconduct, or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurredpaid. The Trustee’s membersTrust may indemnify and hold harmless the employees and agents of the Trust, stockholders, officers, employees, agents, independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held harmless and indemnified in including the same manner and to the same extent. Upon authorization members of the Trust Committee, to the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnified. Without limiting the generality of the foregoing, the Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s investment or non-investment of any Trust Assets or any losses with respect to any such investments of the Trust Assets, same extent as provided that such investments are made, or the Trustee’s decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement.Section 3.10

Standard of Care; Indemnification; Exculpation. The Plan Trustee, acting in the capacity as the Plan Trustee shall perform the duties and obligations imposed on the Trustee or in any other capacity contemplated by this Plan Trust Agreement or the Plan, shall not be personally liable in connection with reasonable diligence and care under the circumstancesaffairs of the Plan Trust to the Plan Trust or to any Person except for such of the Plan Trustee’s acts or omissions that constitute fraud, willful misconduct, or gross negligence. The Plan Trustee shall not be personally liable to the Trust, to any Beneficiary, to any holder of a Claim Plan Trust or to any other Person (for the acts or omissions of any predecessor officer, employee, or successor thereto) for any reason whatsoever, except for such agent of its own acts as shall constitute the Plan Trust unless the Plan Trustee acted with gross negligence or willful misconduct in the selection, retention, or gross negligence as determined by Final Order supervision of a court with competent jurisdictionsuch officer, employee, or agent of the Plan Trust. Except as aforesaidin those situations in which the Plan Trustee is not exonerated of personal liability in accordance with the foregoing, the Plan Trustee shall, to (including each former Plan Trustee) shall be indemnified by the fullest extent permitted by applicable law, be defended, Plan Trust against and held harmless and indemnified from time to time from the Trust Assets (but not from or by the Beneficiaries or Plan Trust from any of the parties released in the Plan) against any and all losses, claims, costsdamages, liabilities or expenses (including, without limitation, attorney fees, disbursements, and liabilities related expenses) to which the Plan Trustee may be become subject in connection with any action, suit, proceeding, or investigation brought or threatened against the Plan Trustee in the Plan Trustee’s capacity as Plan Trustee, or in any other capacity contemplated by reason this Plan Trust Agreement or the Plan or in connection with any matter arising out of or related to the Plan, this Plan Trust Agreement, or the affairs of the Trustee’s execution of the Trustee’s duties under this Trust Agreement; provided, however, that the Trustee shall not be entitled to indemnification if and to the extent the Trustee is found by a Final Order of a court with competent jurisdiction to have committed willful misconduct or gross negligencePlan Trust. If the Plan Trustee becomes involved in any action, proceeding proceeding, or investigation in connection with any matter arising out of or in connection with the Plan, this Plan Trust Agreement or the affairs of the Plan Trust, the Plan Trust shall periodically advance or otherwise reimburse on demand the Plan Trustee’s reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert feesdisbursements, disbursements and related expenses) incurred in connection therewith, but the Plan Trustee shall be required to repay promptly to the Plan Trust the amount of any such advanced or reimbursed expenses paid to the Plan Trustee to the extent that it is shall be ultimately determined by Final Order of a court of competent jurisdiction that the Plan Trustee engaged in fraud, willful misconduct misconduct, or gross negligence in connection with the affairs of the Plan Trust with respect to the specific matters as to which such expenses were incurredpaid. The Trustee’s members, stockholders, officers, employees, agents, independent contractors, if any, Plan Trust may indemnify and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held hold harmless the employees and indemnified in agents of the same manner and Plan Trust to the same extentextent as provided in this Section 3.10 for the Plan Trustee. Upon authorization The provisions of this Section 3.10 shall remain available to and be binding on any former Plan Trustee or the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnified. Without limiting the generality of the foregoing, the Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s investment or non-investment estate of any Trust Assets or any losses with respect to any such investments of the Trust Assets, provided that such investments are made, or the decedent Plan Trustee’s decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement.

Standard of Care; Indemnification; Exculpation. The Trustee shall perform the duties and obligations imposed on the Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The Trustee shall not be personally liable to the Trust, to any Beneficiary, to any holder of a Claim Trust or to any other Person Beneficiary (or any predecessor or successor theretoof such entities) for any reason whatsoever, except for such of its own acts as shall constitute willful misconduct misconduct, gross negligence, willful disregard of the Trustee's duties or gross negligence as determined by Final Order material breach of a court with competent jurisdictionthis Trust Agreement. Except as aforesaid, the Trustee shall, to the fullest extent permitted by applicable law, shall be defended, held harmless and indemnified from time to time from the Trust Assets (but not from or by the Beneficiaries or any of the parties released in the Plan) ), against any and all losses, claims, costs, expenses and liabilities to which the Trustee may be subject by reason of the Trustee’s 's execution in good faith of the Trustee’s 's duties under this Trust Agreement; provided. The Trustee's officers, howeveremployees, that the Trustee shall not be entitled to indemnification if and to the extent the Trustee is found by a Final Order of a court with competent jurisdiction to have committed willful misconduct or gross negligence. If the Trustee becomes involved in any action, proceeding or investigation in connection with any matter arising out of or in connection with the Plan, this Trust Agreement or the affairs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the Trustee’s reasonable legal and other expenses agents (including, without limitation, the cost of any investigation and preparation and attorney fees, expert fees, disbursements and related expensesTrustee's Professionals) incurred in connection therewith, but the Trustee shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses to the extent that it is determined by Final Order of a court of competent jurisdiction that the Trustee engaged in willful misconduct or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurred. The Trustee’s members, stockholders, officers, employees, agents, independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall 7.5 above may be likewise defended, held harmless and indemnified in the same manner and to the same extent. Upon upon authorization of the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnifiedAdvisory Board. Without limiting the generality of the foregoing, the Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s 's investment or non-investment of any Trust Assets or any losses with respect to any such investments of the Trust Assets, provided that such investments are made, or the Trustee’s 's decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement. The Trustee shall not be obligated to give any bond or surety or other security for the performance of any of its duties, unless otherwise required by the Trust Advisory Board pursuant to Section 7.3(a) above or otherwise ordered by the Bankruptcy Court and, if so otherwise required or ordered, all costs and expenses of procuring any such bond shall be deemed Trust Expenses.

Standard of Care; Indemnification; Exculpation. The Trustee Neither the Trust Committee nor any of its members, designees, counsel, financial advisors or any duly designated agent or representative of any such party shall perform the duties and obligations imposed on the Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The Trustee shall not be liable to for the Trustact, to any Beneficiary, to any holder default or misconduct of a Claim or to any other Person (member of the Trust Committee, nor shall any member be liable for anything other than such member’s own gross negligence or any predecessor or successor thereto) for any reason whatsoever, except for such of its own acts as shall constitute willful misconduct or gross negligence as determined by Final Order of a court with competent jurisdiction. Except as aforesaid, the Trustee Trust Committee and its members shall, to the fullest extent permitted by applicable law, be defended, held harmless and indemnified from time to time from the Trust Assets (but not from or by the Beneficiaries or any of the parties released in the Plan) against any and all losses, claims, costs, expenses and liabilities to which the Trustee Trust Committee or its members may be subject by reason of the TrusteeTrust Committee’s or Trust Committee members’ execution of the TrusteeTrust Committee’s duties under this Trust Agreement; provided, however, that the Trustee Trust Committee and its members shall not be entitled to indemnification if and to the extent the Trustee is Trust Committee or Trust Committee members, as applicable, are found by a Final Order of a court with competent jurisdiction to have committed willful misconduct or gross negligence. The Trust Committee or any member may, in connection with the performance of their duties, and in their sole and absolute discretion, consult with the Trustee’s counsel and any other of the Trustee’s Professionals and/or with counsel and other professional advisors directly retained by the Trust Committee or counsel to a member of the Trust Committee, and, in the absence of the Trust Committee’s or one of its member’s gross negligence or willful misconduct, the Trust Committee or member thereof shall not be liable for anything done or omitted or suffered to be done in accordance with the advice or opinions of such professionals. If the Trustee becomes Trust Committee or any member determines not to consult with counsel, accountants or other Professionals, it shall not be deemed to impose any liability on the Trust Committee or its members and/or designees. If the Trust Committee or any of its members become involved in any action, proceeding or investigation in connection with any matter arising out of or in connection with the Plan, this Trust Agreement or the affairs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the TrusteeTrust Committee’s or member’s reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert fees, disbursements and related expenses) incurred in connection therewith, but the Trustee Trust Committee or Trust Committee member, as applicable, shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses to the extent that it is determined by Final Order of a court of competent jurisdiction that the Trustee Trust Committee or Trust Committee member engaged in willful misconduct or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurred. The TrusteeTrust Committee’s members, stockholders, officers, employees, agents, and independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held harmless and indemnified in the same manner and to the same extent. Upon authorization of the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnifiedextent provided in this Section 5.10. Without limiting the generality of the foregoing, the Trustee Trust Committee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s investment or non-investment of any Trust Assets or any losses with respect to any such investments of the Trust Assets, provided that such investments are made, or the Trustee’s decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement.

Standard of Care; Indemnification; Exculpation. The Liquidating Trustee shall perform the duties and obligations imposed on the Liquidating Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The None of the Liquidating Trustee nor the LT Firm or its affiliates nor any of the Liquidating Trust Professionals (the “LT Protected Parties”) shall not be liable (personally or otherwise) to the Liquidating Trust, to any Beneficiary, to any holder of a Claim Beneficiary or to any other Person (or any predecessor or successor thereto) for any reason whatsoeverwhatsoever arising out of matters relating to the Liquidating Trust, the execution or failure to execute the Liquidating Trustee’s duties or the performance or nonperformance of services for the Liquidating Trust or Liquidating Trustee, except for such of its such person’s own acts as shall constitute willful misconduct or misconduct, gross negligence as determined by Final Order or willful disregard of a court with competent jurisdictiontheir duties and, for the avoidance of doubt, in no event shall the LT Firm be responsible or liable for the acts or omissions of the Liquidating Trustee. Except as aforesaid, the Trustee shall, to the fullest extent permitted by applicable law, LT Protected Parties shall be defended, held harmless and indemnified from time to time time, but solely from the Liquidating Trust Assets (but not from or by the Beneficiaries or any of the parties released in the Plan) Assets, against any and all losses, claims, costs, expenses and liabilities to which the Liquidating Trustee may be subject by reason as a result of the Trustee’s execution of the Trustee’s duties under this Trust Agreement; provided, however, that the Trustee shall not be entitled to indemnification if and or relating to the extent the Trustee is found by a Final Order LT Protected Parties’ acts or omissions or consequences of a court with competent jurisdiction to have committed willful misconduct such acts or gross negligence. If the Trustee becomes involved in any actionomissions, proceeding or investigation in connection with any matter arising out of or in connection with the Plan, this Trust Agreement or the affairs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the Trustee’s reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert fees, disbursements and related expenses) incurred in connection therewith, but the Trustee shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses to the extent that it is determined by Final Order of a court of competent jurisdiction that the Trustee engaged in willful misconduct or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurred. The Trustee’s membersimplementation, stockholdersbusiness, officers, employees, agents, independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held harmless and indemnified in affairs or administration of the same manner and Liquidating Trust or the Plan or the discharge of their duties hereunder or otherwise to the same extent. Upon authorization Liquidating Trust or the Liquidating Trustee (“Related Matters”), except for those claims finally and judicially determined to have arisen from the gross negligence, bad faith or willful misconduct of the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnifiedsuch LT Protected Party. Without limiting the generality of the foregoing, the Liquidating Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Liquidating Trustee’s investment or non-investment of any Liquidating Trust Assets or any losses with respect to any such investments of the Liquidating Trust Assets, provided that such investments are made, or the Liquidating Trustee’s decision not to invest any Liquidating Trust Assets in any case is made, in accordance with the express terms of this Agreement relating directly to investment of assets. The Liquidating Trustee shall not be obligated to give any bond or surety or other security for the performance of any of his duties, unless otherwise ordered by the Bankruptcy Court and, if so ordered, all costs and expenses of procuring any such bond shall be deemed Liquidating Trust AgreementExpenses.

Standard of Care; Indemnification; Exculpation. The Trustee shall perform the duties and obligations imposed on the Trustee by this Trust Agreement with reasonable diligence and care under the circumstances. The ; provided, however, the Trustee shall not be liable to the Trust, to any Beneficiary, to any holder of a Claim Beneficiary or to any other Person (or any predecessor or successor thereto) for any reason whatsoever, except for such of its own acts as shall constitute willful misconduct or gross negligence as determined by Final Order of a court with competent jurisdictionnegligence. Except as aforesaidwith regards to its own acts constituting willful misconduct or gross negligence, the Trustee shall, to the fullest extent permitted by applicable law, shall be defended, held harmless and indemnified from time to time from the Trust Assets (but not from or by the Beneficiaries or any of the parties released Company (including in the Planits capacity as Intermediate Company) against any and all losses, claims, costs, expenses and liabilities to which the Trustee may be subject by reason of the Trustee’s execution of the Trustee’s duties under this Trust Agreement; provided, however, that the Trustee shall not be entitled to indemnification if and to the extent the Trustee is found by a Final Order of a court with competent jurisdiction to have committed willful misconduct Agreement or gross negligence. If the Trustee becomes involved in any action, proceeding or investigation in connection with any matter otherwise arising out of this Agreement (including the reasonable fees and expenses or in connection with counsel and the Plan, this Trust Agreement or the affairs costs of the Trust, the Trust shall periodically advance or otherwise reimburse on demand the Trustee’s reasonable legal and other expenses (including, without limitation, the cost of any investigation and preparation and attorney fees, expert fees, disbursements and related expenses) incurred in connection therewith, but the Trustee shall be required to repay promptly to the Trust the amount of any such advanced or reimbursed expenses to the extent that it is determined successfully defending itself against a claim by Final Order of a court of competent jurisdiction that the Trustee engaged in willful misconduct or gross negligence in connection with the affairs of the Trust with respect to the specific matters as to which such expenses were incurredanother party hereto). The Trustee’s members, stockholders, officers, employees, agents, independent contractors, if any, and any co-trustees appointed pursuant to Section 4.5 above, shall be likewise defended, held harmless and indemnified in the same manner and to the same extent. Upon authorization of the Trust Committee, the Trustee’s and the Trust Committee’s Professionals may likewise be defended, held harmless and indemnified. Without limiting the generality of the foregoing, the Trustee shall have no liability to any Beneficiary or holder of a Claim against the Debtors on account of the Trustee’s investment or non-investment of any Trust Assets or any losses with respect to any such investments of the Trust Assets, provided that such investments are made, or the Trustee’s decision not to invest any Trust Assets in any case is made, in accordance with the terms of this Trust Agreement. The Trustee shall not be obligated to give any bond or surety or other security for the performance of any of its duties. The Trustee shall not be required to, and shall not, expend or risk any of its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Trustee (including, but not limited to, any act or provision of any present or future law or regulation or governmental authority, any act of God or war or terrorism, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility). The permissive rights and powers granted to the Trustee hereunder shall not be construed as duties. The Trustee shall not be responsible for the existence, genuineness or value of any of the assets or for the validity, perfection, priority or enforceability of the liens in any of the assets, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, for the validity of title to the assets, for insuring the assets or for the payment of taxes, charges, assessments or liens upon the assets. In no event shall the Trustee be liable for any indirect, consequential, punitive or special damages, even if advised of the possibility thereof. The Trustee may act through agents and shall not be responsible for the conduct of any such agent appointed with due care. The provisions of this Section 4.3 and the Company’s obligations herein shall survive the termination of this Agreement, the resignation or removal of the Trustee and the Merger.