Standard of Care; Exculpation. (a) As used herein, the term “
Standard of Care; Exculpation. Neither the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) (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 Liquidating Trust Agreement (including these exculpation provisions), as and when imposed on the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent), incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Liquidating Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Liquidating Trust Agreement whether in its capacity as Liquidating Trustee or acting as Disbursing Agent, 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 Liquidating Trust or any other Exculpated Party pursuant to the provisions of this Liquidating 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 Liquidating Trust or any Exculpated Party acting for and on behalf of the Liquidating 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 ...
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 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. The Individual Trustees shall perform the duties and obligations imposed on the Individual Trustees by this Trust Agreement with reasonable diligence and care under the circumstances. The Individual Trustees shall not be personally liable to the Trust or to any Class Member (or any successor of such entities) except to the extent it is determined by a final order of a court of competent jurisdiction that damages were caused solely by the Individual Trustees’ gross negligence or willful misconduct. Any act or omission taken with the approval of the District Court shall be conclusively deemed not to constitute gross negligence or willful misconduct. The Trust shall indemnify, release, defend and hold harmless the Individual Trustees and the Trust’s employees and each of their professionals and representatives from and against any and all claims, causes of action, costs, liabilities, losses, damages and expenses (including reasonable attorney’s fees and expenses) (except to the extent determined by a final order of a court of competent jurisdiction to be due solely to their own respective gross negligence or willful misconduct) to the fullest extent permitted by applicable law. The Trust shall advance to the Individual Trustees and, in the discretion of the Individual Trustees, may advance to other indemnified persons, any and all legal fees and expenses relating to claims for which indemnification may be available hereunder. Upon any final determination that the Individual Trustees are not permitted to be indemnified for any expenses so advanced, the Individual Trustees shall reimburse the Trust for all such amounts previously paid. Except in their capacity as Legal Representatives with respect to the Proceed Assets, the Individual Trustees shall not be deemed successors to the Debtor, and any liability resulting from such successor capacity with respect to the Proceed Assets shall be solely the responsibility of the Debtor. The Individual Trustees and the Trust shall be authorized, but not required, to obtain (by using cash of the Trust) bonding and insurance coverage with respect to the responsibilities, liabilities, and obligations of the Individual Trustees, the Legal Representatives and the Trust and those entities hired by the Individual Trustees and the Trust to discharge such responsibilities, liabilities and obligations. The obligations of the Trust under this Section 4.7 to indemnify, release, defend and hold harmless the Individual Trustees and th...
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. Subject to the foregoing:
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 Voting Trust to any person or entity except for such acts or omissions of the Trustee as shall constitute fraud, willful misconduct or gross negligence. Subject to the foregoing:
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 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 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 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 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 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.
Standard of Care; Exculpation. Neither the Litigation 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 Litigation Trustee in good faith, other than (i) acts or omissions resulting from the Litigation Trustee’s or any such agent’s, representative’s or professional’s gross negligence, bad faith, wilful misconduct or knowing violation of law or (ii) acts or omissions from which the Litigation Trustee or any such agent, representative or professional derived an improper personal benefit. The Litigation Trustee may, in connection with the performance of its functions, and in its sole and absolute discretion, consult with its counsel, 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 its counsel, 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 Trustee, unless such determination is based on gross negligence, bad faith, wilful misconduct or knowing violation of law. No amendment, modification or repeal of this Section 3.20 shall adversely affect any right or protection of the Litigation Trustee or any of its agents, representatives or professionals that exists at the time of such amendment, modification or repeal.
