Common use of Standard of Care; Exculpation Clause in Contracts

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, dealings or relationships, and the Litigation Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the Litigation Trustee or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Trustee has been informed of the likelihood of such loss or damages and regardless of the form of action. Any liability of the Litigation Trustee or any other Exculpated Party under this Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Litigation Trustee as of the date of any determination.

Standard of Care; Exculpation. Neither the Litigation Trustee, 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 Litigation 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 Litigation Liquidating Trust Agreement (including these exculpation provisions), as and when imposed on the Litigation TrusteeLiquidating 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 Litigation Liquidating Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Litigation Liquidating Trust AgreementAgreement 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 holder of a Claim or Interest 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 Liquidating Trust or any other Exculpated Party pursuant to the provisions of this Litigation 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 Litigation Liquidating Trust or any Exculpated Party acting for and on behalf of the Litigation 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 or otherwise dealing with or having any relationship with the Litigation Liquidating Trust or any Exculpated Party shall have recourse only to the Litigation Liquidating Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, and the Litigation Liquidating Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the Litigation Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) has been informed of the likelihood of such loss or damages and regardless of the form of action. Any liability of the Litigation Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Litigation Liquidating Trust Agreement shall be limited to an amount equal to the fees actually paid to the Litigation Liquidating Trustee (solely in its capacity as such) as of the date of any determination.

Standard of Care; Exculpation. Neither the Litigation Trustee, Trustee nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, agent or representative of the Litigation Trustee (each, an “Exculpated Party” and collectively, the “Exculpated Parties”) shall be personally 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 the affairs of the 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 person or incurred by any Holder of a Claim entity except for such acts or Interest or Beneficiary that are determined by a Final Order omissions of the Bankruptcy Court to have been caused by the intentional Trustee as shall constitute fraud, willful misconduct or gross negligence negligence. Subject to the foregoing: (a) The Trustee shall be entitled to assume the validity and enforceability of such Exculpated Party. Every act 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, power exercised omitted to be taken by it in accordance with the instructions provided hereunder. (c) The Trustee shall not be responsible for or obligation assumed 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 Litigation 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 any other Exculpated Party pursuant required by the terms of this Agreement, or is unsure as to the provisions application, intent, interpretation or meaning of any provision of this Litigation Trust Agreement, the Plan, or the Confirmation Order Trustee shall promptly give notice (in such form as shall be held appropriate under the circumstances) to Holdings requesting instruction as to the course of action to be taken or omittedadopted, exercisedand, 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 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 liabilities person. If the Trustee shall not have received appropriate instructions within 10 calendar days of sending such notice (or other obligations arising within such shorter period of time as reasonably may be specified in connection 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 such contracts, dealings or relationshipsthis Agreement, and the Litigation Trust 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, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper reasonably believed by it to be genuine and reasonably believed by it to be signed by the proper party or parties and need not investigate any fact or matter in any such document as long as the Trustee has otherwise satisfied its obligations under this Agreement. (f) The Trustee may consult with legal counsel and any action under this Agreement taken in good faith by it in accordance with the opinion of such counsel shall be binding and conclusive upon the parties hereto and the Exculpated Parties Trustee shall not be individually liable therefor. In fully protected and shall have no event shall liability in respect thereof. (g) The Trustee may accept written instructions by Holdings as conclusive evidence that any action by the Litigation Trustee or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Trustee Partnership has been informed of duly adopted and that the likelihood of such loss or damages same is in full force and regardless of the form of action. Any liability of the Litigation Trustee or any other Exculpated Party under this Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Litigation Trustee as of the date of any determinationeffect.

Standard of Care; Exculpation. Neither None of the Litigation TrusteeLiquidating Debtors, nor the Liquidation Trustee or any director, officer, member, affiliate, employee, employer, member, professional, successorssuccessor, assignsassign, agent, or representative of the Litigation Liquidation Trustee (eacheach when acting in the capacity of the Liquidation Trustee, an “Exculpated Indemnified Party” and collectively, the “Exculpated Indemnified 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 contract, or otherwise), penalties, costs, and expenses, including reasonable fees and disbursements disbursements, including, the costs for counsel or others in investigating, preparing, defending, or settling any action or claim (collectively referred to herein as “Losses”), whether or not in connection with litigation in which any Exculpated Indemnified Party is a party, or administering or enforcing this Litigation Liquidation Trust Agreement (including these exculpation provisions), as and when imposed on the Litigation Trusteean Indemnified Party, incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Litigation Liquidation Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Litigation Liquidation Trust Agreement, the Plan, Agreement or the Confirmation Order, Plan or as may arise by reason of any action, omission omission, or error of an Exculpated PartyIndemnified Party in connection therewith; provided, however, that the foregoing limitation shall not apply to any Losses suffered or incurred by any Holder holder of a Claim or Equity Interest or Beneficiary that are determined found in a final judgment by a Final Order court of the Bankruptcy Court competent jurisdiction (not subject to further appeal) to have been caused by resulted directly from the intentional fraud, gross negligence or willful misconduct or gross negligence of such Exculpated Indemnified Party. Every act taken or omitted, power exercised exercised, or obligation assumed by the Litigation Liquidation Trust or any other Exculpated Indemnified Party pursuant to the provisions of this Litigation Liquidation Trust Agreement, the Plan, or the Confirmation Order Agreement shall be held to be taken or omitted, exercised, or assumed, as the case may be, by the Litigation Liquidation Trust or any Exculpated Indemnified Party acting for and on behalf of the Litigation Liquidation Trust and not otherwise; provided, however, that none of the foregoing Entities or Persons are deemed to be responsible for any other such Entities’ or Persons’ actions or inactions. Except as provided in the first proviso of the first sentence of this SectionSection 4.1, every Person, firm, corporation, or other Entity contracting or otherwise dealing with or having any relationship with the Litigation Liquidation Trust or any Exculpated Indemnified Party shall have recourse only to the Litigation Liquidation Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, relationships and the Litigation Liquidation Trust and the Exculpated Indemnified Parties shall not be individually liable therefortherefore. In no event shall the Litigation Liquidation Trustee or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Liquidation Trustee has been informed of the likelihood of such loss or damages and regardless of the form of action. Any liability of the Litigation Liquidation Trustee or any other Exculpated Party under this Litigation Liquidation Trust Agreement shall will be limited to an the amount equal to the of fees actually paid to the Litigation Liquidation Trustee as of unless the date of any determinationliability was due to fraud, gross negligence or willful misconduct.

Standard of Care; Exculpation. Neither the Litigation Liquidation Trustee, nor any director, 285 officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of 286 the Litigation Liquidation Trustee (each, an “Exculpated Party” and collectively, the “Exculpated Parties”’) 287 shall be liable for any losses, claims, damages, liabilities, obligations, settlements, proceedings, 288 suits, judgments, causes of action, litigation, actions, or investigations investigations, (whether civil or 289 administrative and whether sounding in tort, contract contract, or otherwise), penalties, costs, and 290 expenses, including reasonable fees and disbursements (collectively referred to herein as 291 “Losses”), whether or not in connection with litigation in which any Exculpated Party is a party, or administering or 292 enforcing this Litigation Trust Agreement (including these exculpation provisions), as and when imposed on the Litigation 293 Liquidation Trustee, incurred, caused by, relating to, based upon or arising out of (directly or 294 indirectly) the Litigation Liquidation Trustee’s execution, delivery, and acceptance of or the performance or 295 nonperformance of its powers, duties and obligations under this Litigation Trust Agreement, the Plan, or the 296 Confirmation Order, Order or as may arise by reason of any action, omission omission, or error of an Exculpated 297 Party; provided, however, that the foregoing limitation shall not apply to any Losses suffered or 298 incurred by any Holder holder of a Claim or Interest or Beneficiary that are determined found in a final judgment by a Final Order 299 court of the Bankruptcy Court competent jurisdiction (not subject to further appeal) to have been caused by the intentional fraudresulted primarily and 300 directly from acts of bad faith, gross negligence or willful misconduct or gross negligence of such Exculpated Party. 301 Every act taken or omitted, power exercised exercised, or obligation assumed by the Litigation Liquidation Trust or any other 302 Exculpated Party pursuant to the provisions of this Litigation Trust Agreement, the Plan, or the Confirmation Order Agreement shall be held to be taken or omitted, 303 exercised, or assumed, as the case may be, by the Litigation Liquidation Trust or any Exculpated Party acting 304 for and on behalf of the Litigation Liquidation Trust and not otherwise; provided, however, that none of the 305 foregoing Entities or Persons are deemed to be responsible for any other such Entities’ or Persons’ 306 actions or inactionsintentions. Except as provided in the first proviso of the first sentence of this SectionSection 307 5.1, every Person, firm, corporation, or other Entity contracting or otherwise dealing with or 308 having any relationship with the Litigation Liquidation Trust or any Exculpated Party shall have recourse 309 only to the Litigation Liquidation Trust Assets for payment of any liabilities or other obligations arising in 310 connection with such contracts, dealings or relationships, relationships and the Litigation Liquidation Trust and the 311 Exculpated Parties shall not be individually liable therefortherefore. In no event shall the Litigation Trustee Liquidation 312 Trust or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential 313 damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Trustee Liquidation Trust 314 or such Exculpated Party has been informed of the likelihood of such loss or damages and 315 regardless of the form of action. Any liability of the Litigation Liquidation Trustee or any other Exculpated Party under this Litigation Trust Agreement shall 316 will be limited to an the amount equal to the of annual fees actually paid to the Litigation Trustee as of the date of any determinationLiquidation Trustee.

Standard of Care; Exculpation. Neither (a) None of the Litigation Trustee, nor any directorDelaware Trustee, officerTOC, memberClaims Administrator, affiliateSpecial Master or their respective members, employeeofficers, employeremployees, professionalagents, successorsconsultants, assignslawyers, agentadvisors, or representative of the Litigation Trustee professionals (each, an “Exculpated Party” and collectively, the “Exculpated Trust Indemnified Parties” with each being a “Trust Indemnified Party”) shall be liable for any lossesdamages arising out of the creation, claimsoperation, damagesadministration, liabilities, obligations, settlements, proceedings, suits, judgments, causes of action, litigation, actionsenforcement, or investigations termination of the Trust, except in the case of such Trust Indemnified Party’s willful misconduct, bad faith or fraud as established by a Final Order To the fullest extent permitted by applicable law, the Trust Indemnified Parties shall have no liability for any action in performance of their duties under this Trust Agreement taken in good faith with or without the advice of counsel, accountants, appraisers, and other professionals retained by the Trust Indemnified Parties. None of the provisions of this Trust Agreement shall require the Trust Indemnified Parties to expend or risk their own funds or otherwise incur personal financial liability in the performance of any of their duties hereunder or in the exercise of any of their respective rights and powers. Any Trust Indemnified Party may rely, without inquiry, upon writings delivered to it under any of the Trust Documents, which the Trust Indemnified Party reasonably believes to be genuine and to have been given by a proper person. Notwithstanding the foregoing, nothing in this Section 5.4 shall relieve the Trust Indemnified Parties from any liability for any actions or omissions arising out of the willful misconduct, bad faith or fraud as determined by a Final Order; provided that in no event will any such person be liable for punitive, exemplary, consequential, or special damages under any circumstances. Any action taken or omitted by the Trust Indemnified Parties with the approval of any of the Bankruptcy Court, the District Court, or the Superior Court of California for the County of San Francisco and, in the case of the Trustee, with the express approval of the TOC, will conclusively be deemed not to constitute willful misconduct, bad faith or fraud. (b) The Trust Indemnified Parties shall not be subject to any personal liability whatsoever, whether civil or administrative and whether sounding in tort, contract contract, or otherwise), penalties, costs, and expenses, including reasonable fees and disbursements (collectively referred to herein as “Losses”), whether or not any person in connection with litigation in which the affairs of the Trust or for any Exculpated Party is a partyliabilities or obligations of the Trust except for its own willful misconduct, bad faith, or administering fraud, and all Persons claiming against the Trust Indemnified Parties, or enforcing otherwise asserting claims of any nature in connection with affairs of the Trust, shall look solely to the Trust Assets for satisfaction of any such claims. (c) To the extent that, at law or in equity, the Trust Indemnified Parties have duties (including fiduciary duties) or liability related thereto, to the Trust or the Beneficiaries, it is hereby understood an agreed by the parties hereto and the Beneficiaries that such duties and liabilities are eliminated to the fullest extent permitted by applicable law, and replaced by the duties and liabilities expressly set forth in this Litigation Trust Agreement (including these exculpation provisions)with respect to the Trust Indemnified Parties, 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, provided however, that the foregoing limitation shall duties of care and loyalty are not apply eliminated but are limited and subject to any Losses suffered or incurred by any Holder of a Claim or Interest or Beneficiary that are determined by a Final Order the terms 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, dealings or relationships, and the Litigation Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the Litigation Trustee or any other Exculpated Party be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profitsthis Section 5.4 and its subparts. (d) whatsoever, even if The Trust Indemnified Parties shall be indemnified to the Litigation Trustee has been informed fullest extent permitted by law by the Trust against all liabilities arising out of the likelihood of such loss creation, operation, administration, enforcement, or damages and regardless termination of the form Trust, including actions taken or omitted in fulfillment of action. Any liability their duties with respect to the Trust, except for those acts that those acts that are determined by Final Order to have arisen out of their own willful misconduct, bad faith or fraud. (e) The Trust will maintain appropriate insurance coverage for the protection of the Litigation Trust Indemnified Parties, as determined by the Trustee in his or any other Exculpated Party under this Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Litigation Trustee as of the date of any determinationher sole discretion.

Standard of Care; Exculpation. Neither the Litigation TrusteeTrusteeNone of the Liquidating Trustees nor the Independent Designee, nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the Litigation Trustee (each, an “Exculpated Party” and collectively, TrusteeLiquidating Trustees or the “Exculpated Parties”) Liquidating Trust 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 expenses in connection with litigation in which the affairs or property of the Liquidating Trust to any Exculpated Party is a partyBeneficiary of the Liquidating Trust, or administering any other person, for the acts or enforcing this Litigation Trust Agreement (including these exculpation provisions)omissions of the TrusteeLiquidating Trustees, as and when imposed on the Litigation TrusteeIndependent Designee, incurredor any director, caused byofficer, relating toaffiliate, based upon employee, employer, professional, agent, or arising out representative of (directly or indirectly) the Litigation Trustee’s execution, delivery, and acceptance of TrusteeLiquidating Trustees 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 PartyLiquidating Trust; provided, however, that the foregoing limitation shall not apply as to any Losses losses, claims, damages, liabilities or expenses suffered or incurred by any Holder of a Claim or Interest or Beneficiary that are determined found by a Final Order final judgment by a court of the Bankruptcy Court competent jurisdiction (not subject to further appeal) to have been caused by resulted primarily and directly from the intentional fraud, gross negligence, or willful misconduct or gross negligence of such Exculpated Partyperson or entity. Every act taken or omitteddone, power exercised or obligation assumed by the Litigation Trust Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, or any other Exculpated Party director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust pursuant to the provisions of this Litigation Trust Agreement, the Plan, or the Confirmation Order Agreement shall be held to be taken or omitteddone, exercised, or assumed, as the case may be, by the Litigation Trust Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, or any Exculpated Party director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust acting for and on behalf of the Litigation Liquidating Trust and not otherwise; provided, however, that none of the foregoing Entities or Persons are deemed to be responsible for any other such Entities’ or Persons’ actions or inactions. Except as provided in the first proviso inactions outside of the first sentence scope of this Sectionthe authority provided by the Liquidating Trust. Every Beneficiary, every Person, firm, corporation or other Entity contracting or otherwise dealing with or having any relationship with the Litigation Trust Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, or any Exculpated Party director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust shall have recourse only to the Litigation Liquidating Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings dealings, or relationships, relationships and the Litigation Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, any director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust and the Exculpated Parties shall not be individually liable therefor. For the avoidance of doubt, the Trustee,Liquidating Trustees, each in its capacity as such, and the Independent Designee shall have no liability whatsoever to any party for the liabilities and/or obligations, however created, whether direct or indirect, in tort, contract, or otherwise, of the Debtors or the Reorganized Debtors.. In no event shall the Litigation Trustee Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, or any other Exculpated Party director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust be liable for indirect, punitive, special, incidental, or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Litigation Trustee such person or entity has been informed of the likelihood of such loss or damages and regardless of the form of action. Any liability The TrusteeThe Liquidating Trustees and the Independent Designee, to the extent applicable, shall have the right at any time to seek instructions from the Bankruptcy Court concerning the administration or disposition of the Litigation Trustee Liquidating Trust Assets and the Causes of Action administered by the Liquidating Trust. The Liquidating Trust, the TrusteeLiquidating Trustees, the Independent Designee, or any other Exculpated Party under this Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Litigation Trustee as director, officer, affiliate, employee, employer, professional, agent, or representative of the date of TrusteeLiquidating Trustees or the Liquidating Trust shall not be liable for any determinationact or omission that has been approved by the Bankruptcy Court, and all such actions or omissions shall conclusively be deemed not to constitute fraud, gross negligence, or willful misconduct.