Common use of Duty of Care Indemnification Clause in Contracts

Duty of Care Indemnification. 5.3.1 No Member, including the Manager, shall be liable to the Company or to any of its other Members for any loss or damage occasioned by any act or omission in the performance of its duties or services, unless such loss is due to the gross negligence, recklessness or willful misconduct of such Member, or as otherwise required by law. 5.3.2 The Company shall indemnify and hold harmless each Member (including the Manager), its Affiliates, and all officers, directors, shareholders, employees, and agents of the Member and its Affiliates (each, individually, an "Indemnitee") from and against any and all claims, losses, demands, costs, damages, liabilities (joint and several), expenses of any nature (including attorneys' fees and disbursements), judgments, fines, settlements and other amounts (collectively, "Claims") arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative (individually, an "Action"; collectively, "Actions"), in which the Indemnitee may be involved, or threatened to be involved, as a party or otherwise, arising out of or incidental to the Company's business or operations, a Member's alleged actions or failures to act in its capacity as a Member of the Company, or the Manager's alleged actions or failure to act in its capacity as a Manager of the Company at the time such Claims are paid or incurred, if (i) the Indemnitee acted in good faith and in a manner that it believed to be in, or not opposed to, the interests of the Company, and, with respect to any criminal proceeding, had no reasonable cause to believe that its conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute actual fraud, gross negligence, breach of its fiduciary duty as a Member or any transaction in which a Member or such Indemnitee received a personal benefit in violation or breach of this Agreement. The termination of any action, suit or proceeding by judgment, order settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that the Member did not act in good faith and in the manner which the Member believed to be in or not opposed to the interest of the other Members or, with respect to any criminal action or proceeding, that the Member had reasonable cause to believe its conduct was unlawful. 5.3.3 The Company shall pay the expenses incurred by a Member in defending an Action in advance of the final disposition of such Action upon receipt of an undertaking by such Member to repay such payment if there shall be an adjudication or determination that it is not entitled to indemnification as provided herein. A Member may not satisfy any right of indemnity or reimbursement granted in this Section 5.3 or to which it may be otherwise entitled except out of the assets of the Company, and no Member shall be liable personally with respect to any such claim for indemnity or reimbursement. The Manager may obtain appropriate insurance on behalf of the Company to secure the Company's obligations hereunder. 5.3.4 The indemnification provided by this Section 5.3 shall be in addition to any other rights to which those indemnified may be entitled under any agreement or vote of the Members, or as a matter of law or equity, or otherwise, both as to an action in the Indemnitee's capacity as a Member or an Affiliate thereof, and as to an action in another capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee. 5.3.5 The Company may purchase and maintain insurance on behalf of the Manager, and such other Indemnitees as the Manager may determine, against any liability that may be asserted against, or expense that may be incurred by, any such Indemnitee in connection with the Company's business or such Indemnitee's actions or failures to act on behalf of the Company, regardless of whether the Company would have the power to indemnify such Indemnitee against such liability under the provisions of this Agreement. 5.3.6 The provisions of this Section 5.3 are for the benefit of the Indemnitees and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitees and shall not be deemed to create any rights for the benefit of other Persons and shall apply to any Action, regardless of whether the claim is asserted by or on behalf of the Company. The doing of any act or the failure to do any act by a Member, the effect of which may cause loss or damage to the Company, if done pursuant to advice of independent legal counsel retained by the Company, shall be conclusively presumed not to constitute intentional misconduct or a knowing violation of law on the part of such Member, or an intentional breach of the Member's fiduciary duty, unless such advice was induced by the Member's intentional misconduct, knowing violation of law or non-disclosure of material facts known to the Member. 5.3.7 Notwithstanding the foregoing, no Member shall be liable to the Company, any other Member or any other Person for any amount beyond the amount of such Member's obligations set forth in this Agreement.