Common use of Standard of Care; Exculpation Clause in Contracts

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 or otherwise dealing with or having any relationship with the Liquidating Trust or any Exculpated Party shall have recourse only to the Liquidating Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, and the Liquidating Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the 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 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 Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Trust Agreement shall be limited to an amount equal to the fees actually paid to the Liquidating Trustee (solely in its capacity as such) as of the date of any determination.

Standard of Care; Exculpation. Neither the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) Liquidation Trustee, nor any director, 285 officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of 286 the Liquidating Liquidation Trustee (in its capacity as such or acting as Disbursing Agent) (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 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)293 Liquidation Trustee, incurred, caused by, relating to, based upon or arising out of (directly or 294 indirectly) the Liquidating Liquidation Trustee’s execution, delivery, and acceptance of or the performance or 295 nonperformance of its powers, duties and obligations under this Liquidating Trust Agreement whether in its capacity as Liquidating Trustee or acting as Disbursing AgentAgreement, 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 of a Claim or interest 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 Liquidating Liquidation Trust or any other 302 Exculpated Party pursuant to the provisions of this Liquidating 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 Liquidating Liquidation Trust or any Exculpated Party acting 304 for and on behalf of the Liquidating 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 Liquidating Liquidation Trust or any Exculpated Party shall have recourse 309 only to the Liquidating Liquidation Trust Assets for payment of any liabilities or other obligations arising in 310 connection with such contracts, dealings or relationships, relationships and the Liquidating Liquidation Trust and the 311 Exculpated Parties shall not be individually liable therefortherefore. In no event shall the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) 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 Liquidating Trustee (in its capacity as Liquidation Trust 314 or such or acting as Disbursing Agent) 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 Liquidating Liquidation Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Trust Agreement shall 316 will be limited to an the amount equal to the of annual fees actually paid to the Liquidating Trustee (solely in its capacity as such) as of the date of any determinationLiquidation Trustee.

Standard of Care; Exculpation. Neither (a) None of the Liquidating Trustee (in its capacity as such Trustee, Delaware Trustee, TOC, Claims Administrator, Special Master or acting as Disbursing Agent) nor any directortheir respective members, officerofficers, memberemployees, affiliateagents, employeeconsultants, employerlawyers, professional, successors, assigns, agentadvisors, or representative of the Liquidating Trustee professionals (in its capacity as such or acting as Disbursing Agent) (each, an “Exculpated Party” and collectively, the “Exculpated Trust Indemnified Parties” with each being a “Trust Indemnified Party”) 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 damages arising out of (directly the creation, operation, administration, enforcement, or indirectly) termination of the Liquidating TrusteeTrust, except in the case of such Trust Indemnified Party’s executionwillful misconduct, deliverybad 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 acceptance 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 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 actionof their duties hereunder or in the exercise of any of their respective rights and powers. Any Trust Indemnified Party may rely, omission 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 error omissions arising out of an Exculpated Party; providedthe willful misconduct, however, that the foregoing limitation shall not apply to any Losses suffered bad faith or incurred by any holder of a Claim or interest or Beneficiary that are fraud as determined by a Final Order 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 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 AgreementCourt, the PlanDistrict Court, or the Confirmation Order shall be held to be taken or omittedSuperior Court of California for the County of San Francisco and, exercised, or assumed, as in the case may be, by the Liquidating Trust or any Exculpated Party acting for and on behalf of the Liquidating Trust and not otherwise; providedTrustee, however, that none with the express approval of the foregoing Entities are TOC, will conclusively be deemed not to be responsible for any other such Entities’ actions constitute willful misconduct, bad faith 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 Liquidating Trust or any Exculpated Party shall have recourse only to the Liquidating Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, and the Liquidating Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the 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 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 Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Trust Agreement shall be limited to an amount equal to the fees actually paid to the Liquidating Trustee (solely in its capacity as such) as of the date of any determinationfraud.

Standard of Care; Exculpation. Neither the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) Litigation Trustee, nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the Liquidating Litigation 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 Litigation Trust Agreement (including these exculpation provisions), as and when imposed on the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent)Litigation Trustee, incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Liquidating Litigation Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Liquidating Litigation Trust Agreement whether in its capacity as Liquidating Trustee or acting as Disbursing AgentAgreement, 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 Liquidating Litigation Trust or any other Exculpated Party pursuant to the provisions of this Liquidating 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 Liquidating Litigation Trust or any Exculpated Party acting for and on behalf of the Liquidating 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 Liquidating Litigation Trust or any Exculpated Party shall have recourse only to the Liquidating Litigation Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, and the Liquidating Litigation Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the Liquidating Litigation 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 Liquidating Litigation 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 Liquidating Litigation Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Liquidating Litigation Trustee (solely in its capacity as such) as of the date of any determination.

Standard of Care; Exculpation. Neither None of the Liquidating Debtors, the Liquidation Trustee (in its capacity as such or acting as Disbursing Agent) nor any director, officer, member, affiliate, employee, employer, member, professional, successorssuccessor, assignsassign, agent, or representative of the Liquidating Liquidation Trustee (each when acting in its the capacity as such or acting as Disbursing Agent) (eachof 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 Liquidating Liquidation Trust Agreement (including these exculpation provisions), as and when imposed on the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent)an Indemnified Party, incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Liquidating Liquidation Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Liquidating Liquidation Trust Agreement whether in its capacity as Liquidating Trustee or acting as Disbursing Agent, the Plan, 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 of a Claim or interest 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 Liquidating Liquidation Trust or any other Exculpated Indemnified Party pursuant to the provisions of this Liquidating 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 Liquidating Liquidation Trust or any Exculpated Indemnified Party acting for and on behalf of the Liquidating 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 Liquidating Liquidation Trust or any Exculpated Indemnified Party shall have recourse only to the Liquidating Liquidation Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, relationships and the Liquidating Liquidation Trust and the Exculpated Indemnified Parties shall not be individually liable therefortherefore. In no event shall the Liquidating Liquidation 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 Liquidating Liquidation 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 Liquidating Liquidation Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Liquidation Trust Agreement shall will be limited to an the amount equal to the of fees actually paid to the Liquidating Liquidation Trustee (solely in its capacity as such) as of unless the date of any determinationliability was due to fraud, gross negligence or willful misconduct.

Standard of Care; Exculpation. Neither the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) Litigation Trustee, nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the Liquidating Litigation Trustee (in its capacity as such or acting as Disbursing Agent) (each, an “Exculpated Party” and collectively, the 13 “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 Litigation Trust Agreement (including these exculpation provisions), as and when imposed on the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent)Litigation Trustee, incurred, caused by, relating to, based upon or arising out of (directly or indirectly) the Liquidating Litigation Trustee’s execution, delivery, and acceptance of or the performance or nonperformance of its powers, duties and obligations under this Liquidating Litigation Trust Agreement whether in its capacity as Liquidating Trustee or acting as Disbursing AgentAgreement, 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 Liquidating Litigation Trust or any other Exculpated Party pursuant to the provisions of this Liquidating 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 Liquidating Litigation Trust or any Exculpated Party acting for and on behalf of the Liquidating 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 Liquidating Litigation Trust or any Exculpated Party shall have recourse only to the Liquidating Litigation Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings or relationships, and the Liquidating Litigation Trust and the Exculpated Parties shall not be individually liable therefor. In no event shall the Liquidating Litigation 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 Liquidating Litigation 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 Liquidating Litigation Trustee (in its capacity as such or acting as Disbursing Agent) or any other Exculpated Party under this Liquidating Litigation Trust Agreement shall be limited to an amount equal to the fees actually paid to the Liquidating Litigation Trustee (solely in its capacity as such) as of the date of any determination.

Standard of Care; Exculpation. Neither the TrusteeNone of the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) Trustees nor the Independent Designee, nor any director, officer, member, affiliate, employee, employer, professional, successors, assigns, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) (each, an “Exculpated Party” and collectively, the “Exculpated Parties”) 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 Liquidating Trust Agreement (including these exculpation provisions)omissions of the TrusteeLiquidating Trustees, as and when imposed on the Independent Designee, or any director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or 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 PartyTrust; 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 Liquidating Trust 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 Liquidating 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 Liquidating Trust 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 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 Liquidating Trust 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 Liquidating Trust Assets for payment of any liabilities or other obligations arising in connection with such contracts, dealings dealings, or relationships, relationships and the 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 Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) 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 Liquidating Trustee (in its capacity as such person or acting as Disbursing Agent) 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 Liquidating Trustee (in its capacity as such or acting as Disbursing Agent) 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 director, officer, affiliate, employee, employer, professional, agent, or representative of the TrusteeLiquidating Trustees or the Liquidating Trust Agreement shall not be limited liable for any act or omission that has been approved by the Bankruptcy Court, and all such actions or omissions shall conclusively be deemed not to an amount equal to the fees actually paid to the Liquidating Trustee (solely in its capacity as such) as of the date of any determinationconstitute fraud, gross negligence, or willful misconduct.