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AFFIPMATIVE DEFENSES <br /> First Affirmative Defense <br /> (Failure to State a Claim) <br /> 6. As an affirmative defense to Third-Party Defendant's counterclaim, <br /> Defendants reallege the allegations in paragraphs 1-5 above and further state that the <br /> counterclaim fails to state a claim for which relief may be granted. <br /> Second Affirmative Defense <br /> (Lack of Duty of Creditors' Trustee for <br /> ad valorem tax years 1990, 1991, 1992 or 1993) <br /> 7. As an affirmative defense to Third-Party Defendant's counterclaim, <br /> Defendants reallege the allegations in paragraphs 1-5 above and further state that the <br /> Creditors' Trustee had neither the authority nor the obligation to act so far as MCR's Coal <br /> Basin ad valorem taxes were concerned for the tax years 1990, 1991, 1992 or 1993. <br /> Third Affirmative Defense <br /> (Creditors' Trustee Standard of Care) <br /> 8. As an affirmative defense to Third-Party Defendant's counterclaim, <br /> Defendants reallege the allegations in paragraphs 1-5 above and further state that the <br /> standard of care is contained in the PLAN,which provides (id. § 6.2.4): <br /> 6.2.4 Exculpation. Neither the Creditors'Trustee nor either of the Creditors' <br /> Representatives shall be personally liable to the Creditors' Trust, to the <br /> holder of an Allowed Claim,or to the Debtor or its corporate affiliates,arising <br /> out of any act or omission as Creditors'Trustee or Creditors'Representative, <br /> except for such acts or omissions as shall constitute misfeasance, gross <br /> negligence,or willful disregard of duties. Except for such acts or omissions, <br /> the Trustee and the Creditors' Representatives shall, from time to time,be <br /> entitled to be exonerated and indemnified by the Creditors'Trust against any <br /> loss, expense, or liability which they may suffer. Neither the Creditors' <br /> Trustee nor the Creditors'Representatives shall be required to give any bond <br /> or surety for the performance of their duties and, if so otherwise ordered, <br /> shall be entitled to be reimbursed for the cost of such bond or surety from <br /> the Creditors' Trust. <br /> 9. As a party to the bankruptcy proceeding, the State of Colorado is bound by <br /> the foregoing and collaterally and otherwise estopped to raise issues in contravention of the <br /> foregoing standard. <br /> DEFENDA.Ni's'REPLY To THIRD-PARTY <br /> CIVIL NO.97 cv 131-3 -3- DEFENDANTS COUNTERCLAIM <br />