Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 27 contracts

Samples: Operating Agreement (Groundfloor Loans 1, LLC), Operating Agreement (Groundfloor Loans 1, LLC), Operating Agreement (Fundrise Development eREIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons. (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 14 contracts

Samples: Operating Agreement (Fundrise East Coast Opportunistic REIT, LLC), Operating Agreement (Fundrise Midland Opportunistic REIT, LLC), Operating Agreement (Fundrise Development eREIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 10 contracts

Samples: Operating Agreement (Reitless Impact Income Strategies LLC), Operating Agreement (REITless Impact Opportunity Zone Strategies LLC), Operating Agreement (Reitless Impact Income Strategies LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VV of the OPERATING AGREEMENT, to the fullest extent permitted by applicable law, the ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) shall not be liable to the ~~Company~~COMPANY, any Subsidiary of the ~~Company~~COMPANY, any officer of the ~~Company~~ COMPANY or a Subsidiary, or any ~~Member or any holder~~ Shareholder of any equity interest in any Subsidiary of the ~~Company~~COMPANY, for any acts or omissions by any of the ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~COMPANY, this ~~Agreement~~ OPERATING AGREEMENT or any investment made or held by the ~~Company~~COMPANY, including with respect to any acts or omissions made while serving at the request of the ~~Company~~ COMPANY as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another ~~Person~~ person, or entity, or any employee benefit plan. The ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) shall be indemnified by the ~~Company~~ COMPANY to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the ~~Company~~ COMPANY and counsel fees and disbursements on a solicitor and client basis) (collectively, “"Expenses and Liabilities”") arising from the performance of any of their duties or obligations in connection with their service to the ~~Company~~ COMPANY or this ~~Agreement~~OPERATING AGREEMENT, or any investment made or held by the ~~Company~~COMPANY, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such ~~Person~~ person, or entity, may hereafter be made party by reason of being or having been a ~~manager~~ MANAGING MEMBER or member of the ~~Company~~ BOARD OF DIRECTORS of the COMPANY under Delaware law, a director or officer of the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY or the ~~Manager~~MANAGING MEMBER or member of the BOARD OF DIRECTORS, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another ~~Person~~ person or any employee benefit plan at the request of the ~~Company~~COMPANY. Without limitation, the foregoing indemnity shall extend to any liability of any ~~Indemnified Person~~INDEMNIFIED PERSON(S), pursuant to a loan guaranty or otherwise, for any indebtedness of the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY (including any indebtedness which the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY has assumed or taken subject to), and the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS (and its officers) are hereby authorized and empowered, on behalf of the ~~Company~~COMPANY, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 of the OPERATING AGREEMENT in favor of any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) of this OPERATING AGREEMENT that the ~~Company~~ COMPANY indemnify each ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to the fullest extent permitted by law. (b) The provisions of this ~~Agreement~~OPERATING AGREEMENT, to the extent they restrict the duties and liabilities of an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.6 of this OPERATING AGREEMENT, are agreed by each ~~Member~~ Shareholder to modify such duties and liabilities of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 of the OPERATING AGREEMENT (unless ordered by a court) shall be made by the ~~Company~~ COMPANY unless the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS determines in the specific case that indemnification of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the ~~Manager; provided that if the Manager~~ MANAGING MEMBER or ~~its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~BOARD OF DIRECTORS. To the extent, however, that an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS that the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c)) of this OPERATING AGREEMENT, and notwithstanding the absence of any determination thereunder, any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) may apply to the Court of ~~Chancery~~ NEW CASTLE of the State of Delaware or any other court of competent jurisdiction in the State of ~~Delaware~~ California for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. The basis of such indemnification by a court shall be a determination by such court that indemnification of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is proper in the circumstances because such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) of this OPERATING AGREEMENT, nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) of this OPERATING AGREEMENT shall be given to the ~~Company~~ COMPANY promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the ~~Company~~ COMPANY in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to repay such amount if it shall ultimately be determined that such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is not entitled to be indemnified by the ~~Company~~ COMPANY as authorized in Section 5.4 of this ~~‎Section 5.4~~OPERATING AGREEMENT. (f) The indemnification and advancement of expenses provided by or granted pursuant to Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement~~OPERATING AGREEMENT, or any other agreement, determination of the ~~Manager~~MANAGING MEMBER, the BOARD OF DIRECTORS, a vote of ~~Members~~ the Shareholders or otherwise, and shall continue as to an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) unless otherwise provided in a written agreement with such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) or in the writing pursuant to which such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is indemnified, it being the policy of the ~~Company~~ COMPANY that indemnification of the persons specified in Section 5.4(a) of this OPERATING AGREEMENT shall be made to the fullest extent permitted by law. The provisions of ~~this~~ Section 5.4 of the OPERATING AGREEMENT shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) of this OPERATING AGREEMENT but whom the ~~Company~~ COMPANY has the power or obligation to indemnify under the provisions of the ~~Delaware Act~~DELAWARE ACT. (g) The ~~Company~~ COMPANY may, but shall not be obligated to, purchase and maintain insurance on behalf of any ~~Person~~ Person(s) entitled to indemnification under ~~this~~ Section 5.4 of the OPERATING AGREEMENT against any liability asserted against such ~~Person~~ Person(s) and incurred by such ~~Person~~ person(s) in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ person's status as such, whether or not the ~~Company~~ COMPANY would have the power or the obligation to indemnify such ~~Person~~ person(s) against such liability under the provisions of Section 5.4 of this ~~Section 5.4~~OPERATING AGREEMENT. (h) The indemnification and advancement of expenses provided by, or granted pursuant ~~to, this~~ to Section 5.4 of this OPERATING AGREEMENT shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under Section 5.4 of this ~~Section 5.4~~OPERATING AGREEMENT. (i) The ~~Company~~ COMPANY may, to the extent authorized from time to time by the ~~Manager~~MANAGING MEMBER or BOARD OF DIRECTORS, provide rights to indemnification and to the advancement of expenses to employees and agents of the ~~Company~~ COMPANY and to the employees and agents of any ~~Company~~ COMPANY Subsidiary or ~~Affiliate~~ AFFILIATE similar to those conferred in Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT to ~~Indemnified Persons~~INDEMNIFIED PERSONS. (j) If Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT, or any portion of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT shall be invalidated on any ground by a court of competent jurisdiction the ~~Company~~ COMPANY shall nevertheless indemnify each ~~Indemnified Person~~ INDEMNIFIED PERSON(S) as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the ~~Company~~COMPANY, to the full extent permitted by any applicable portion of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT that shall not have been invalidated. (k) Each of the ~~Indemnified Persons~~ INDEMNIFIED PERSONS may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such ~~Person~~ person (or entity) on behalf of the ~~Company~~ COMPANY in furtherance of the interests of the ~~Company~~ COMPANY in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person (or entity) will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~COMPANY. (l) ~~An Indemnified Person~~ INDEMNIFIED PERSON(S) shall not be denied indemnification in whole or in part under Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT because the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this ~~Agreement~~OPERATING AGREEMENT. (m) Any liabilities which an ~~Indemnified Person~~ INDEMNIFIED PERSON incurs as a result of acting on behalf of the ~~Company~~ COMPANY (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under Section 5.4 of this ~~‎Section 5.4~~OPERATING AGREEMENT, to the maximum extent permitted by law. (n) The directors and officers of the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS shall, in the performance of his or / her / its duties, be fully protected in relying in good faith upon the records of the ~~Company~~ COMPANY and on such information, opinions, reports or statements presented to the ~~Company~~ COMPANY by any of the officers or employees of the ~~Company or~~ COMPANY, the ~~Manager~~ MANAGING MEMBER, the BOARD OF DIRECTORS, or by any other ~~Person~~ person as to matters the director or officer of the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS reasonably believes are within such other ~~Person’s~~ person's professional or expert competence. (o) Any amendment, modification or repeal of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT, or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) under ~~this~~ Section 5.4 of this OPERATING AGREEMENT as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such ~~Person~~ person became an ~~Indemnified Person~~ INDEMNIFIED PERSON hereunder prior to such amendment, modification or repeal.

Appears in 8 contracts

Samples: Operating Agreement (Strategic Hotel Ventures, LLC), Operating Agreement (Century West Multifamily Income Reit, LLC), Operating Agreement (Century West Multifamily Income Reit, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, partnership representative, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and reasonable counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, partnership representative, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including reasonable attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including reasonable attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 8 contracts

Samples: Limited Liability Company Agreement (Birgo Reiturn Fund LLC), Limited Liability Company Agreement (Birgo Reiturn Fund LLC), Limited Liability Company Agreement (Birgo Reiturn Fund Manager LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.08, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.06(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.06(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.08, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.06 (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.06(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.06(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.06(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.06(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Administrative Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 5.06. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.06 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.06(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.06(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.06(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.06 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.06. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.06 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.06. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section 5.06 or any portion of this ~~‎Section 5.4~~ Section 5.06 shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.06 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.06 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.06, to the maximum extent permitted by law. (n) The ~~directors~~ Managing Member and ~~officers of the~~ each Manager shall, in the performance of ~~his or her~~ their duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Managers or the Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the~~ Managing Member and such Manager reasonably ~~believes~~ believe are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.06 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.06 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 7 contracts

Samples: Limited Liability Company Agreement (StartEngine Collectibles Fund I LLC), Limited Liability Company Agreement (StartEngine Collectibles Fund I LLC), Limited Liability Company Agreement (StartEngine Collectibles Fund I LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary of the Company or the Manager~~associated with such Series, or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 7 contracts

Samples: Limited Liability Company Agreement (Casa Shares Assets, LLC), Limited Liability Company Agreement (Arrived Homes II, LLC), Limited Liability Company Agreement (Compound Projects, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary of the Company or the Manager~~associated with such Series, or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the ~~persons~~ Persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 6 contracts

Samples: Limited Liability Company Agreement (Arrived Homes 5, LLC), Limited Liability Company Agreement (Arrived STR, LLC), Limited Liability Company Agreement (Arrived Homes 4, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable ~~law, the Indemnified Persons~~ Law: (i) Oaktree Capital Group Holdings shall not ~~be liable~~ have any liability to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any Member or any holder of ~~any~~ an equity interest in any Subsidiary of the Company, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of fact or error in judgment, taken, suffered or made; (ii) a Director or Officer shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission, including any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud; and (iii) all other Indemnified Persons shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission arising from the ~~exercise of their rights or~~ performance of ~~their~~ such Indemnified Person’s duties and obligations in connection with the Company, any Subsidiary of the Company, this Agreement or any investment made or held by the Company or any Subsidiary of the Company, including with respect to any ~~acts~~ act or ~~omissions~~ omission made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, including any mistake of fact or error in judgment, taken, suffered or made only if such act or omission constitutes a breach of the duties of such Indemnified Person and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud. The provisions of this Section 6.16(a) are intended and shall be interpreted as only limiting the liability of an Indemnified Person and not as in any way expanding such Person’s liability. (b) The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their respective duties or obligations in connection with their respective service to the Company, to any Subsidiary of the Company or pursuant to this Agreement, or in connection with any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Company, to which any such Indemnified Person may hereafter be made party by reason of being or having been an Indemnified Person, except: (i) with respect to a ~~manager~~ Director or Officer, to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the ~~Company under Delaware law~~duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a ~~director~~ material adverse effect on the business or ~~officer~~ properties of the Company or (B) fraud; and (ii) with respect to all Indemnified Persons (other than Directors, Officers and Oaktree Capital Group Holdings), to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any ~~Subsidiary~~ mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or ~~the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company~~(B) fraud. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a ~~loan~~ loan, guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers) are~~ Company is hereby authorized and ~~empowered, on behalf of the Company,~~ empowered to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 6.16 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 6.16(b) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~Law except as specifically provided in this Section 6.16(b). (bc) The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person breached any duty or committed (i) willful malfeasance, gross negligence, a felony or a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (ii) fraud. (d) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 6.20, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 6.16 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~6.16(e), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.16(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable ~~standards~~ standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 6.16(e) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 6.16(f) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (eg) To the fullest extent permitted by ~~law~~Law, expenses (including attorneys’ fees) actually and reasonably incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 6.16. (fh) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 6.16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement,~~ Agreement or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified~~, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law~~. The provisions of this Section ~~5.4~~ 6.16 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 6.16(b) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (gi) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person ~~entitled to indemnification under this Section 5.4~~ against any liability asserted against such Indemnified Person and incurred by such Indemnified Person in any capacity to in which ~~they are~~ such Indemnified Person is entitled to indemnification hereunder, or arising out of such Indemnified Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Indemnified Person against such liability under the provisions of this Section ~~5.4~~6.16. (hj) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 6.16 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this Section ~~5.4~~6.16. (ik) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.6.16

Appears in 6 contracts

Samples: Operating Agreement, Operating Agreement (Oaktree Capital Group, LLC), Operating Agreement (Oaktree Capital Group, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ officer, tax matters partner, or Partnership Representative of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.4.(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.4.(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.4.(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.4.(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section ~~5.4(a~~5.4.(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section ~~5.4(a~~5.4.(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.4.(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.4.(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.4.(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.4.(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons. (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 5 contracts

Samples: Operating Agreement (Fundrise National for-Sale Housing eFund, LLC), Operating Agreement (Fundrise for-Sale Housing eFUND - Los Angeles CA, LLC), Operating Agreement (Fundrise for-Sale Housing eFUND - Washington DC, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary~~ officer of the Company, ~~any officer of the Company or a Subsidiary,~~ or any Member ~~or any holder of any equity interest in any Subsidiary~~ of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) Notwithstanding anything to the contrary in this Agreement, nothing in this Article V shall eliminate or limit the personal liability of Indemnified Persons to the Company or its Members for monetary damages or breach of fiduciary duty for (i) any breach of the Indemnified Persons’ duty of loyalty to the Company in its capacity as a Manager or on behalf of its Manager, which duty of loyalty shall be similar to the duty of loyalty a director owes to a corporation under the DGCL; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction from which the Indemnified Persons derived an improper personal benefit; and (iv) for unlawful payment of distributions or purchase or redemption of limited liability company units, similar to the limitation imposed on directors of a corporation under Section 174 of the DGCL. All references in this Section 5(b) paragraph to an Indemnified Person and Manager shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of this Agreement, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Manager. (c) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (cd) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; , provided that if the Manager or any of its Affiliates is the Indemnified Person, by ~~a majority vote of~~ the ~~directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~Independent Representative. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (de) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ef) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (fg) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (gh) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mj) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (ok) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 5 contracts

Samples: Limited Liability Company Agreement (One Chestnut Realty LLC), Limited Liability Company Agreement (Solis Seattle, LLC), Limited Liability Company Agreement (Regal 286 Lenox LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article~~ ARTICLE V, ~~to the fullest extent permitted by applicable law~~including Section 5.7, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary of~~ Series or the ~~Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company,~~ Members for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or~~ Advisory Board, a member of the ~~Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the Manager ~~(and its officers)~~ or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the~~ Manager shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the~~ Manager reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, an Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Every Assets I, LLC), Limited Liability Company Agreement (Every Assets I, LLC), Limited Liability Company Agreement (Every Assets I, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.07, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.05(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.05(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.07, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.05 (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorneys fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.05(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.05(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.05(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.05(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorneys fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 5.05. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.05 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.05(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.05(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.05(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.05 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.05. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.05 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.05. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section 5.05 or any portion of this ~~‎Section 5.4~~ Section 5.05 shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.05 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.05 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.05, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.05 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.05 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Exceed Talent Capital Holdings LLC), Limited Liability Company Agreement (Investables Projects LLC), Limited Liability Company Agreement (Otis Collection LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.06, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company ~~or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company,~~ for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, ~~a director or officer~~ an Officer of the Company ~~or any Subsidiary of the Company or the Manager,~~ or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company ~~or any Subsidiary of the Company~~ (including any indebtedness which ~~the Company or any Subsidiary of~~ the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.04(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.04(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.06, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the ~~extent, however,~~ extent that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.04(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.04(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.04(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.04(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.04. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.04 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement~~, determination of the Manager~~, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.04(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.04(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.04(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.04 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.04. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.04 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.04. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the ~~Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~Company. (j) If this ~~‎Section 5.4~~ Section 5.04 or any portion of this ~~‎Section 5.4~~ Section 5.04 shall be invalidated on any ground by a court of competent ~~jurisdiction~~ jurisdiction, the Company shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, ~~fines,~~ fines and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.04 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.04 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.04, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the ~~Company or the Manager~~ Company, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.04 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.04 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Public Luxury Handbag Portfolio LLC), Limited Liability Company Agreement (Public Shrek Royalties LLC), Limited Liability Company Agreement (Public 1997 Michael Jordan PMG LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary of~~ Series or the ~~Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company,~~ Members for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Collectable Sports Assets, LLC), Limited Liability Company Agreement (Collectable Sports Assets, LLC), Limited Liability Company Agreement (Collectable Sports Assets, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Whimsy Properties LLC), Limited Liability Company Agreement (Whimsy Properties LLC), Limited Liability Company Agreement (Ark7 Properties Plus LLC)

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Investment.com Collection LLC), Limited Liability Company Agreement (Fintor Assets, LLC), Limited Liability Company Agreement (Fintor Assets, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 4 contracts

Samples: Limited Liability Company Agreement (Mission Property Holdings LLC), Limited Liability Company Agreement (Here Collection LLC), Limited Liability Company Agreement (Here Collection LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to ~~other applicable provisions of this Article V, to the fullest extent permitted by applicable law~~Section 5.19(c), the Company shall indemnify any Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company), by reason of the fact that such Indemnified Person is or was within the category of persons constituting Indemnified Persons ~~shall not be liable to the Company, any Subsidiary~~ of the Company, ~~any officer~~ or is or was within the category of persons constituting Indemnified Persons of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an a director, officer, ~~director, member, partner, tax matters partner, fiduciary~~ employee or ~~trustee~~ agent of another ~~Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law~~company, ~~against all expenses and liabilities (including judgments~~partnership, ~~fines~~joint venture, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative trust or other ~~action~~enterprise, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) ), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Person in connection ~~therewith~~with such action, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware suit or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because proceeding if such Indemnified Person ~~has met~~ acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the ~~applicable standards~~ best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such Indemnified Person’s conduct ~~set forth in ‎‎Section 5.4(a)~~was unlawful. ~~Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence~~ The termination of any ~~determination thereunder~~ action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall ~~be a defense to such application or~~ not, of itself, create a presumption that the Indemnified Person ~~seeking indemnification has~~ did not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, act in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification good faith and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a ~~written agreement with such Indemnified Person or in the writing pursuant to~~ manner which such Indemnified Person ~~is indemnified, it being~~ reasonably believed to be in or not opposed to the ~~policy~~ best interests of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company mayCompany, ~~but shall not be obligated to~~and, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any ~~action, suit, proceeding or investigation, whether civil,~~ criminal ~~or administrative, including a grand jury proceeding or~~ action or ~~suit brought by or in the right of the Company~~proceeding, had reasonable cause to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided believe that such ~~legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An~~ Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s ~~professional or expert competence~~conduct was unlawful. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC), Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC), Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VV including Section 5.7, ~~to the fullest extent permitted by applicable law, the Indemnified Persons~~ a Protected Person shall not be liable to ~~the Company,~~ any ~~Subsidiary of the Company, any officer of the~~ Company ~~or a Subsidiary, or any~~ Group Member or any ~~holder of any equity interest in any Subsidiary of the Company,~~ Series Member for any acts or omissions by such Protected Person or any ~~of the Indemnified~~ other Protected Persons arising from the exercise of their rights or performance of their duties and obligations in connection with ~~the Company~~any Company Group Member, this ~~Agreement~~ Agreement, any Series Designation, or any investment made or held by ~~the Company~~a Company Group Member, including with respect to any acts or omissions made while serving at the request of the ~~Company~~ Managing Member as an officer, director, ~~member, partner, tax matters partner, fiduciary~~ or ~~trustee~~ manager of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud or willful misconduct. The ~~Indemnified~~ Protected Persons shall be indemnified by the Company and, to the extent the indemnification obligation is associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all claims, actions, obligations, expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis~~disbursements) (collectively, “~~Expenses and Liabilities~~Losses”) arising from the performance or non-performance of any of their duties or obligations in connection with their service to ~~the~~ any Company Group Member or this Agreement, or any investment made or held by ~~the Company~~any Company Group Member, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ Protected Person, provided that this indemnification shall not cover Losses that arise out of the ~~Company under Delaware law~~acts or omissions of any Protected Person that have been determined in a final, non-appealable decision of a ~~director~~ court, arbitrator or ~~officer~~ other tribunal of ~~the Company~~ competent jurisdiction to have resulted primarily from such Protected Person’s fraud or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Companywillful misconduct. Without limitation, the foregoing indemnity shall extend to any liability of any ~~Indemnified Person,~~ Protected Person pursuant to a loan guaranty or ~~otherwise,~~ otherwise for any indebtedness of ~~the~~ any Company ~~or any Subsidiary of the Company~~ Group Member (including any ~~indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to~~Extraordinary Loan), and the ~~Manager (and its officers) are~~ Managing Member is hereby authorized and empowered, on behalf of ~~the Company~~any Company Group Member, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any ~~Indemnified~~ Protected Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each ~~Indemnified~~ Protected Person to the fullest extent permitted by law, provided that this indemnification shall not cover Losses that arise out of the acts or omissions of any Protected Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Protected Person’s fraud or willful misconduct. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of ~~an Indemnified~~ a Protected Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the ~~Indemnified~~ Protected Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the ~~extent, however,~~ extent that ~~an Indemnified~~ a Protected Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such ~~Indemnified~~ Protected Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such ~~Indemnified~~ Protected Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified~~ Any Protected Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the ~~Indemnified~~ Protected Person is proper in the circumstances because such ~~Indemnified~~ Protected Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the ~~Indemnified~~ Protected Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the ~~Company~~ Managing Member promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified~~ Protected Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To Except in the case of a Protected Person who is subject to a claim of Losses by an aShareX Entity, to the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by ~~an Indemnified~~ a Protected Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such ~~Indemnified~~ Protected Person to repay such amount if it shall ultimately be determined that such ~~Indemnified~~ Protected Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to ~~an Indemnified~~ a Protected Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the ~~Indemnified~~ Protected Person unless otherwise provided in a written agreement with such ~~Indemnified~~ Protected Person or in the writing pursuant to which such ~~Indemnified~~ Protected Person is indemnified, it being the policy of the Company that indemnification of the ~~persons~~ Persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent ~~jurisdiction the Company~~ jurisdiction, each applicable Series shall nevertheless indemnify ~~each Indemnified~~ a Protected Person associated with such Series as to ~~expenses (including attorneys’ fees), judgments, fines, and amounts~~ Losses paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the ~~Indemnified~~ Protected Persons may, in the performance of ~~his, her or~~ its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of ~~the~~ a Company Group Member in furtherance of the interests of ~~the~~ a Company Group Member in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Protected Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (aShareX Fine Art, LLC), Limited Liability Company Agreement (aShareX Fine Art, LLC), Limited Liability Company Agreement (aShareX Fine Art, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable ~~law~~Law: (i) none of the Oaktree Member, the ~~Indemnified Persons~~ Brookfield Member or their respective Affiliates shall ~~not be liable~~ have any liability to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any other Member or any holder of ~~any~~ an equity interest in any Subsidiary of the Company, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of fact or error in judgment, taken, suffered or made; (ii) a Director or Officer shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission, including any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company Group or (B) fraud; and (iii) all other Indemnified Persons shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission arising from (x) the ~~exercise of their rights or~~ performance of ~~their~~ such Indemnified Person’s duties and obligations in connection with services to the Company, to any Subsidiary of the Company, or pursuant to this Agreement or (y) or in connection with any investment made or held by the Company or any Subsidiary of the Company, including with respect to any ~~acts~~ act or ~~omissions~~ omission made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, including any mistake of fact or error in judgment, taken, suffered or made only if such act or omission constitutes a breach of the duties of such Indemnified Person and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company Group or (B) fraud. The provisions of this Section 6.16(a) are intended and shall be interpreted as only limiting the liability of an Indemnified Person and not as in any way expanding such Person’s liability. (b) The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from (x) the performance of any of their respective duties or obligations in connection with their respective service to the Company, to any Subsidiary of the Company or pursuant to this ~~Agreement,~~ Agreement or (y) or in connection with any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Company, to which any such Indemnified Person may hereafter be made party by reason of being or having been an Indemnified Person, except: (i) with respect to a ~~manager~~ Director or Officer, to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company ~~under Delaware law~~Group or (B) fraud; and (ii) with respect to all Indemnified Persons (other than Directors, Officers and the Oaktree Member, the Brookfield Member or their respective Affiliates), to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a ~~director~~ material adverse effect on the business or ~~officer~~ properties of the Company Group or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company(B) fraud. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a ~~loan~~ loan, guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers) are~~ Company or any Subsidiary is hereby authorized and ~~empowered, on behalf of the Company,~~ empowered to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 6.16 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 6.16(b) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~Law except as specifically provided in this Section 6.16(b). (bc) The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person breached any duty or committed (i) willful malfeasance, gross negligence, a felony or a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company Group or (ii) fraud. (d) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 6.20, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 6.16 (unless ordered by a ~~court~~court or arbitral panel of competent jurisdiction) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~6.16(e), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.16(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable ~~standards~~ standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 6.16(e) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 6.16(f) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (eg) To the fullest extent permitted by ~~law~~Law, expenses (including attorneys’ fees) actually and reasonably incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 6.16. (fh) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 6.16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement,~~ Agreement or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified~~, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law~~. The provisions of this Section ~~5.4~~ 6.16 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 6.16(b) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (gi) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person ~~entitled to indemnification under this Section 5.4~~ against any liability asserted against such Indemnified Person and incurred by such Indemnified Person in any capacity to in which ~~they are~~ such Indemnified Person is entitled to indemnification hereunder, or arising out of such Indemnified Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Indemnified Person against such liability under the provisions of this Section ~~5.4~~6.16. (hj) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 6.16 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this Section ~~5.4~~6.16. (ik) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.6.16

Appears in 3 contracts

Samples: Operating Agreement (Brookfield Oaktree Holdings, LLC), Operating Agreement (Oaktree Capital Group, LLC), Operating Agreement (Oaktree Capital Group, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Operating Agreement (Fundrise Growth eREIT III, LLC), Operating Agreement (Fundrise Equity REIT, LLC), Operating Agreement (Fundrise Development eREIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company by virtue of being an Indemnified Person or for any acts or omissions ~~by any of the~~ in their capacity as an Indemnified ~~Persons arising from the exercise of their rights~~ Person or ~~performance of their duties and obligations~~ otherwise in connection with the Company, this Agreement or ~~any investment made or held by~~ the ~~Company, including with respect to any acts or omissions made while serving at the request~~ business and affairs of the Company ~~as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan~~and its Subsidiaries. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) ~~(collectively, “Expenses and Liabilities”)~~ arising ~~from the performance~~ by virtue of being an Indemnified Person or for any of acts or omissions in their ~~duties~~ capacity as an Indemnified Person or ~~obligations~~ otherwise in connection with ~~their service to~~ the Company, this Agreement or the business and affairs of the Company ~~or this Agreement~~and its Subsidiaries, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under the Delaware ~~law~~Act, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(c) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ed) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (fe) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (gf) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (hg) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (ih) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (ji) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (kj) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (lk) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (ml) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (nm) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (on) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (New Fortress Energy LLC), Limited Liability Company Agreement (New Fortress Energy LLC), Limited Liability Company Agreement (New Fortress Energy LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.08, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.06(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.06(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.08, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.06 (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorneys fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.06(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.06(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.06(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.06(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorneys fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Administrative Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 5.06. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.06 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.06(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.06(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.06(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.06 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.06. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.06 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.06. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section 5.06 or any portion of this ~~‎Section 5.4~~ Section 5.06 shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.06 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.06 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.06, to the maximum extent permitted by law. (n) The ~~directors~~ Managing Member and ~~officers of the~~ each Manager shall, in the performance of ~~his or her~~ their duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Managers or the Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the~~ Managing Member and such Manager reasonably ~~believes~~ believe are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.06 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.06 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Limited Liability Company Agreement (StartEngine Collectibles Fund I LLC), Limited Liability Company Agreement (StartEngine Collectibles Fund II LLC), Limited Liability Company Agreement (StartEngine Collectibles Fund I LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any ~~investment made or held by~~ Subsidiary of the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager~~; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons. (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 3 contracts

Samples: Operating Agreement (Building Bits Properties I, LLC), Operating Agreement (Building Bits Properties I, LLC), Operating Agreement (Building Bits Properties I, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the ~~persons~~ Persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Operating Agreement (NY Residential REIT, LLC), Operating Agreement (NY Residential REIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, if any, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the ~~Company~~ Company, the Manager or the ~~Manager~~Sponsor, or an officer, director, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers, if any) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons. (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The agents, employees, directors and officers of the Manager shall, in the performance of ~~his or her~~ their duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the agent, employee, director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Operating Agreement (Platform Ventures Diversified Housing REIT, LLC), Operating Agreement (Platform Ventures Diversified Housing REIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.07, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ Managing Member of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.05(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.05(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.07, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.05 (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.05(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.05(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.05(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.05(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 5.05. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.05 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.05(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.05(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.05(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.05 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.05. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.05 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.05. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section 5.05 or any portion of this ~~‎Section 5.4~~ Section 5.05 shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.05 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.05 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.05, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.05 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.05 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Neptune REM, LLC), Limited Liability Company Agreement (Neptune REM, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary~~ officer of the Company, ~~any officer of the Company or a Subsidiary,~~ or any Member ~~or any holder of any equity interest in any Subsidiary~~ of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under ~~Delaware~~ Maine law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section ~~5.4~~ 5.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.5(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) Notwithstanding anything to the contrary in this Agreement, nothing in this Article V shall eliminate or limit the personal liability of Indemnified Persons to the Company or its Members for monetary damages or breach of fiduciary duty for (i) any breach of the Indemnified Persons’ duty of loyalty to the Company in its capacity as a Manager or on behalf of its Manager, which duty of loyalty shall be similar to the duty of loyalty a director owes to a corporation under the MBCA; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction from which the Indemnified Persons derived an improper personal benefit; and (iv) for unlawful payment of distributions or purchase or redemption of limited liability company units, similar to the limitation imposed on directors of a corporation under the MBCA. All references in this Section 5.5(b) to an Indemnified Person and Manager shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of this Agreement, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Manager. (c) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (cd) Any indemnification under this ‎Section ~~5.4~~ 5.5 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Such determination shall be made in good faith by the Manager; , provided that if the Manager or any of its Affiliates is the Indemnified Person, by ~~a majority vote of~~ the ~~directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~Independent Representative. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). (de) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.5(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any other court of competent jurisdiction in the State of ~~Delaware~~ Maine for indemnification to the extent otherwise permissible under ‎‎Section ~~5.4(a~~5.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ef) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section ~~5.4~~5.5. (fg) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section ~~5.4~~ 5.5 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.5(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.5 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.5(a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (gh) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.5 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.45.5. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mj) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section ~~5.4~~5.5, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (ok) Any amendment, modification or repeal of this ‎Section ~~5.4~~ 5.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (181 High Street LLC), Limited Liability Company Agreement (181 High Street LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Operating Agreement (Arrived Debt Fund, LLC), Operating Agreement (Arrived SFR Genesis Fund, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) ~~(collectively, “Expenses and Liabilities”)~~ arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fortress Investment Group LLC), Limited Liability Company Agreement (Fortress Investment Group LLC)

Appears in 2 contracts

Samples: Limited Partnership Agreement (Brookfield Oaktree Holdings, LLC), Limited Liability Company Agreement (Fortis Minerals, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary of the Company or the Manager~~associated with such Series, or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Vestible Assets, LLC), Limited Liability Company Agreement (Vestible Assets, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary of the Company or the Manager~~associated with such Series, or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the Manager ~~(and its officers)~~ or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the~~ Manager shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the~~ Manager reasonably believes are within such other ~~Person’s~~ Persons professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fundhomes I, LLC), Limited Liability Company Agreement (Fundhomes 1, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Company. Subject to ~~other applicable provisions of this Article V, to the fullest extent permitted by applicable law~~5.19(c), the Company shall indemnify any Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company), by reason of the fact that such Indemnified Person is or was within the category of persons constituting Indemnified Persons ~~shall not be liable to the Company, any Subsidiary~~ of the Company, ~~any officer~~ or is or was within the category of persons constituting Indemnified Persons of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an a director, officer, ~~director, member, partner, tax matters partner, fiduciary~~ employee or ~~trustee~~ agent of another ~~Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law~~company, ~~against all expenses and liabilities (including judgments~~partnership, ~~fines~~joint venture, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative trust or other ~~action~~enterprise, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) ), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Person in connection ~~therewith~~with such action, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware suit or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because proceeding if such Indemnified Person ~~has met~~ acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the ~~applicable standards~~ best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such Indemnified Person’s conduct ~~set forth in ‎‎Section 5.4(a)~~was unlawful. ~~Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence~~ The termination of any ~~determination thereunder~~ action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall ~~be a defense to such application or~~ not, of itself, create a presumption that the Indemnified Person ~~seeking indemnification has~~ did not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, act in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification good faith and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a ~~written agreement with such Indemnified Person or in the writing pursuant to~~ manner which such Indemnified Person ~~is indemnified, it being~~ reasonably believed to be in or not opposed to the ~~policy~~ best interests of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company mayCompany, ~~but shall not be obligated to~~and, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any ~~action, suit, proceeding or investigation, whether civil,~~ criminal ~~or administrative, including a grand jury proceeding or~~ action or ~~suit brought by or in the right of the Company~~proceeding, had reasonable cause to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided believe that such ~~legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An~~ Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s ~~professional or expert competence~~conduct was unlawful. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC), Limited Liability Company Agreement (Fortress Transportation & Infrastructure Investors LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Mansion Collection I LLC)

Exculpation, Indemnification, Advances and Insurance. ~~(a) Subject~~ 5.5. 1Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE 5 including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted DocuSign Envelope ID: 6B6ED8EE-9735-40CC-9571-A5A737D44DF0 primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series DocuSign Envelope ID: 6B6ED8EE-9735-40CC-9571-A5A737D44DF0 (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ Section 5.5.1 that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law~~. (b) The provisions of~~ , provided that this ~~Agreement, to the extent they restrict the duties~~ indemnification shall not cover Expenses and ~~liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section 5.6, are agreed by each Member to modify such duties and liabilities~~ Liabilities that arise out of the acts or omissions of any Indemnified ~~Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by~~ Party that have been determined in a final, non-appealable decision of a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager , arbitrator or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other ~~court~~ tribunal of competent jurisdiction ~~in the State of Delaware for indemnification~~ to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because have resulted primarily from such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application Persons fraud, willful misconduct or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such applicationgross negligence. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (370 Markets LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~law (except in instances of fraud, gross negligence or willful misconduct), against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Table of Contents Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~law if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, gross negligence or willful misconduct. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware or the State of New York for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of ~~such~~ a court’s decision to provide indemnification ~~by a court~~ shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law, subject to the standard of conduct set forth in such Section 5.19(a). The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude Table of Contents the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Table of Contents Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och-Ziff Capital Management Group LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V~~Agreement, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, manager, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Board Member, director, manager or officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, manager, member, partner, ~~tax matters partner~~Partnership Representative, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager~~ Board (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.7 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.7(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.8, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.7 (unless ordered by a court) shall be made by the Company ~~unless~~ regardless of whether the ~~Manager~~ Board determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 2.10 or Section 5.7(a)~~. Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person~~, ~~by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent~~provided, however, that Company shall not be obligated to make any payment to an Indemnified Person ~~has been successful on the merits~~ if such indemnity payments are finally determined by a court of competent jurisdiction in a final judgment, not subject to appeal, to be unlawful or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person ~~had~~ has not met the applicable ~~standard~~ standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 2.10 or Section 5.7(a). In such case, such Indemnified Person shall, within 30 days, repay any amounts received pursuant to Section 5.7(a) and shall thereafter, not be entitled to indemnification pursuant thereto. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person~~ The Company may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for ~~indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be~~ a determination by such court that indemnification of the Indemnified Person is not proper in the circumstances because such Indemnified Person has not met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c~~Section 5.7(a) ~~nor the absence of any determination thereunder shall be a defense to such application~~ or ~~create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct~~Section 2.10. Notice of any application ~~for indemnification~~ pursuant to this ~~‎Section 5.4(d~~Section 5.7(d) shall be given to the ~~Company~~ Indemnified Person promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified Person seeking indemnification~~ Company shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’ fees) incurred by an Indemnified Person in~~ defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.7. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.7 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the ~~Manager~~Board, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.7(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.7 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.7(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.7 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.7. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.7 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.7. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section 5.4~~ Section 5.7 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.7 or any portion of this ~~‎Section 5.4~~ Section 5.7 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.7 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.7 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.7, to the maximum extent permitted by law. (n) The ~~directors~~ directors, Boards and officers of the ~~Manager~~ Board shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or ~~the Manager~~ any Board or by any other Person as to matters the ~~director~~ director, Board or officer of ~~the Manager~~ a Board reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 5.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (LODE Payments International LLC)

Exculpation, Indemnification, Advances and Insurance. ~~(a)~~ Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law~~. (b)~~ , provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law~~. (c)~~ . Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any . Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application~~. (e)~~ . To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4. (f)~~ Section. The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act~~. (g)~~ . The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4. (h)~~ Section. The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4. (i)~~ Section. The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j)~~ such Series. If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated~~. (k)~~ . Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company. (l)~~ such Indemnified Person. An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement~~. (m)~~ . Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law~~. (n)~~ . The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence.~~ competence (o) including, without limitation, the Advisory Board). Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ark7 Properties Advance LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or ~~any holder~~ Beneficial Owner of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, other than such acts or omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud or willful misconduct. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ director, officer or ~~officer~~ agent of the Company or any Subsidiary of the ~~Company~~ Company, the Manager or the Property Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company; provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud or willful misconduct. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is either (i) not permitted by applicable law; or (b) not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager~~; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (GB8 Residential LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary~~ officer of the Company, ~~any officer of the Company or a Subsidiary,~~ or any Member ~~or any holder of any equity interest in any Subsidiary~~ of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section ~~5.4~~ 5.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.5(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) Notwithstanding anything to the contrary in this Agreement, nothing in this Article V shall eliminate or limit the personal liability of Indemnified Persons to the Company or its Members for monetary damages or breach of fiduciary duty for (i) any breach of the Indemnified Persons’ duty of loyalty to the Company in its capacity as a Manager or on behalf of its Manager, which duty of loyalty shall be similar to the duty of loyalty a director owes to a corporation under the DGCL; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction from which the Indemnified Persons derived an improper personal benefit; and (iv) for unlawful payment of distributions or purchase or redemption of limited liability company units, similar to the limitation imposed on directors of a corporation under the DGCL. All references in this Section 5.5(b) to an Indemnified Person and Manager shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of this Agreement, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Manager. (c) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, ~~including ‎Section 5.6,~~ are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (cd) Any indemnification under this ‎Section ~~5.4~~ 5.5 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Such determination shall be made in good faith by the Manager; , provided that if the Manager or any of its Affiliates is the Indemnified Person, by ~~a majority vote of~~ the ~~directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~Independent Representative. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). (de) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.5(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section ~~5.4(a~~5.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ef) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section ~~5.4~~5.5. (fg) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section ~~5.4~~ 5.5 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.5(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.5 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.5(a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (gh) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.5 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.45.5. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mj) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section ~~5.4~~5.5, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (ok) Any amendment, modification or repeal of this ‎Section ~~5.4~~ 5.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Regal 286 Lenox LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Series, any Subsidiary of ~~the Company~~any Series, any ~~officer~~ Director of the Company or ~~a Subsidiary~~associated with any Series, or any Member or any holder of any equity interest in any Subsidiary of ~~the Company~~any Series, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company and/or each such Series or this Agreement, or any investment made or held by the Company, each such Series or any Subsidiaries of such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or associated with such Series or any Subsidiary of ~~the Company or the Manager~~such Series, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the ~~Company~~Company or on behalf of such Series. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series (including any indebtedness which the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.6 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.6(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this ~~Agreement~~Agreement and the Bylaws, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.8, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.6 (unless ordered by a court) shall be made by the Company and each applicable Series unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.6(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.6(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.6(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.6(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company and each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company and each such Series as authorized in this ~~‎Section 5.4~~Section 5.6. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.6(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.6 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.6(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.6 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.6. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.6 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.6. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and/or such Series and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.6 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.6 or any portion of this ~~‎Section 5.4~~ Section 5.6 shall be invalidated on any ground by a court of competent jurisdiction the Company and each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.6 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~Company or such Series. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.6 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.6, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company and/or associated with any Series or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (ETRE Residential, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable ~~law, the Indemnified Persons~~ Law: (i) a Director or Officer shall ~~not be liable~~ have liability to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any Member or any holder of ~~any~~ an equity interest in any Subsidiary of the Company, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud; and (ii) all other Indemnified Persons shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission arising from the ~~exercise of their rights or~~ performance of ~~their~~ such Indemnified Person’s duties and obligations in connection with the Company, any Subsidiary of the Company, this Agreement or any investment made or held by the Company or any Subsidiary of the Company, including with respect to any ~~acts~~ act or ~~omissions~~ omission made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, including any mistake of fact or error in judgment, taken, suffered or made only if such act or omission constitutes a breach of the duties of such Indemnified Person and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud. The provisions of this Section 6.16(a) are intended and shall be interpreted as only limiting the liability of an Indemnified Person and not as in any way expanding such Person’s liability. (b) The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their respective duties or obligations in connection with their respective service to the Company, to any Subsidiary of the Company or pursuant to this Agreement, or in connection with any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Company, to which any such Indemnified Person may hereafter be made party by reason of being or having been an Indemnified Person, except: (i) with respect to a ~~manager~~ Director or Officer, to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the ~~Company under Delaware law~~duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a ~~director~~ material adverse effect on the business or ~~officer~~ properties of the Company or (B) fraud; and (ii) with respect to all Indemnified Persons (other than Directors, Officers and Amino Nutritionals Holdings), to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any ~~Subsidiary~~ mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or ~~the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company~~(B) fraud. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a ~~loan~~ loan, guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers) are~~ Company is hereby authorized and ~~empowered, on behalf of the Company,~~ empowered to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 6.16 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 6.16(b) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~Law except as specifically provided in this Section 6.16(b). (bc) The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person breached any duty or committed (i) willful malfeasance, gross negligence, a felony or a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (ii) fraud. (d) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 6.20, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 6.16 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~6.16(e), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any ~~other~~ court of competent jurisdiction in the State of ~~Delaware~~ California for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.16(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable ~~standards~~ standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 6.16(e) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 6.16(f) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (eg) To the fullest extent permitted by ~~law~~Law, expenses (including attorneys’ fees) actually and reasonably incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 6.16. (fh) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 6.16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement,~~ Agreement or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified~~, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law~~. The provisions of this Section ~~5.4~~ 6.16 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 6.16(b) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ California Act. (gi) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person ~~entitled to indemnification under this Section 5.4~~ against any liability asserted against such Indemnified Person and incurred by such Indemnified Person in any capacity to in which ~~they are~~ such Indemnified Person is entitled to indemnification hereunder, or arising out of such Indemnified Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Indemnified Person against such liability under the provisions of this Section ~~5.4~~6.16. (hj) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 6.16 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this Section ~~5.4~~6.16. (ik) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 6.16 to Indemnified Persons. (jl) If this ~~‎Section 5.4~~ Section 6.16 or any portion of this ~~‎Section 5.4~~ Section 6.16 shall be invalidated on any ground by a court of competent ~~jurisdiction~~ jurisdiction, the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 6.16 that shall not have been invalidated. (km) Each ~~of the~~ Indemnified ~~Persons~~ Person may, in the performance of ~~his, her or its~~ such Indemnified Person’s duties, consult with legal counsel and accountants, and any act or omission by such Indemnified Person on behalf of the Company, any Subsidiary of the Company or any investment held by the Company or any Subsidiary of the Company in furtherance of the interests of the Company, any Subsidiary of the Company or any investment held by the Company or any Subsidiary of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Indemnified Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~Company or such Subsidiary. (ln) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 6.16 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mo) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the U.S. Internal Revenue Service, penalties assessed by the U.S. Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 6.16, to the maximum extent permitted by ~~law~~Law. (np) ~~The directors and officers of the Manager~~ A Director shall, in the performance of ~~his or her~~ such Director’s duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such ~~other~~ Person’s professional or expert competence. (oq) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 6.16 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any Indemnified Person under this Section ~~5.4~~ 6.16 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal. (r) The provisions of this Section 6.16 shall survive the termination of this Agreement with respect to the acts and omissions of an Indemnified Person occurring prior to such termination.

Appears in 1 contract

Samples: Operating Agreement (Targeted Medical Pharma, Inc.)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable ~~law, the Indemnified Persons~~ Law: (i) Oaktree Capital Group Holdings shall not ~~be liable~~ have any liability to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any Member or any holder of ~~any~~ an equity interest in any Subsidiary of the Company, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of fact or error in judgment, taken, suffered or made; (ii) a Director or Officer shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission, including any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud; and (iii) all other Indemnified Persons shall have liability to the Company, any Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission arising from the ~~exercise of their rights or~~ performance of ~~their~~ such Indemnified Person’s duties and obligations in connection with the Company, any Subsidiary of the Company, this Agreement or any investment made or held by the Company or any Subsidiary of the Company, including with respect to any ~~acts~~ act or ~~omissions~~ omission made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, including any mistake of fact or error in judgment, taken, suffered or made only if such act or omission constitutes a breach of the duties of such Indemnified Person and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (B) fraud. The provisions of this Section 6.16(a) are intended and shall be interpreted as only limiting the liability of an Indemnified Person and not as in any way expanding such Person’s liability. (b) The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their respective duties or obligations in connection with their respective service to the Company, to any Subsidiary of the Company or pursuant to this Agreement, or in connection with any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Company, to which any such Indemnified Person may hereafter be made party by reason of being or having been an Indemnified Person, except: (i) with respect to a ~~manager~~ Director or Officer, to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the ~~Company under Delaware law~~duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a ~~director~~ material adverse effect on the business or ~~officer~~ properties of the Company or (B) fraud; and (ii) with respect to all Indemnified Persons (other than Directors, Officers and Oaktree Capital Group Holdings), to the extent that it shall have been determined in a final non-appealable judgment by a court of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any ~~Subsidiary~~ mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or ~~the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company~~(B) fraud. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a ~~loan~~ loan, guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers) are~~ Company is hereby authorized and ~~empowered, on behalf of the Company,~~ empowered to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 6.16 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 6.16(b) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~Law except as specifically provided in this Section 6.16(b). (bc) The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person breached any duty or committed (i) willful malfeasance, gross negligence, a felony or a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company or (ii) fraud. (d) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 6.20, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 6.16 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~6.16(e), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.16(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable ~~standards~~ standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 6.16(e) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 6.16(f) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (eg) To the fullest extent permitted by ~~law~~Law, expenses (including attorneys’ fees) actually and reasonably incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 6.16. (fh) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 6.16 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement,~~ Agreement or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified~~, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law~~. The provisions of this Section ~~5.4~~ 6.16 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 6.16(b) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (gi) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person ~~entitled to indemnification under this Section 5.4~~ against any liability asserted against such Indemnified Person and incurred by such Indemnified Person in any capacity to in which ~~they are~~ such Indemnified Person is entitled to indemnification hereunder, or arising out of such Indemnified Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Indemnified Person against such liability under the provisions of this Section ~~5.4~~6.16. (hj) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 6.16 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this Section ~~5.4~~6.16. (ik) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 6.16 to Indemnified Persons. (jl) If this ~~‎Section 5.4~~ Section 6.16 or any portion of this ~~‎Section 5.4~~ Section 6.16 shall be invalidated on any ground by a court of competent ~~jurisdiction~~ jurisdiction, the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 6.16 that shall not have been invalidated. (km) Each ~~of the~~ Indemnified ~~Persons~~ Person may, in the performance of ~~his, her or its~~ such Indemnified Person’s duties, consult with legal counsel and accountants, and any act or omission by such Indemnified Person on behalf of the Company, any Subsidiary of the Company or any investment held by the Company or any Subsidiary of the Company in furtherance of the interests of the Company, any Subsidiary of the Company or any investment held by the Company or any Subsidiary of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Indemnified Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~Company or such Subsidiary. (ln) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 6.16 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mo) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the U.S. Internal Revenue Service, penalties assessed by the U.S. Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 6.16, to the maximum extent permitted by ~~law~~Law. (np) ~~The directors and officers of the Manager~~ A Director shall, in the performance of ~~his or her~~ such Director’s duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such ~~other~~ Person’s professional or expert competence. (oq) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 6.16 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any Indemnified Person under this Section ~~5.4~~ 6.16 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal. (r) The provisions of this Section 6.16 shall survive the termination of this Agreement with respect to the acts and omissions of an Indemnified Person occurring prior to such termination.

Appears in 1 contract

Samples: Operating Agreement (Oaktree Capital Group, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, ~~or any~~ the Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) ~~(collectively, “Expenses and Liabilities”)~~ arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.17 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.17(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.20, are agreed by ~~each~~ the Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.17 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.17(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.17(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.17(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.17(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.17(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.17(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.17. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.17 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination~~ vote of the ~~Manager, vote of Members~~ Member or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.17(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.17 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.17(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.17 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.17. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.17 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.17. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.17 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.17 or any portion of this ~~‎Section 5.4~~ Section 5.17 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.17 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; ~~provided that~~ provided, that, such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.17 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.17, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.17 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.17 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal. (p) With respect to any Indemnified Person who acts or serves as a director, officer, fiduciary, employee, consultant, advisor or agent of, the Member or any of its Affiliates (other than the Company Group), the Company Group shall be primarily liable for all indemnification, reimbursements, advancements or similar payments (the “Indemnity Obligations”) afforded to such Indemnified Person acting in such capacity or capacities on behalf or at the request of the Board of Directors, the Company or any other member of the Company Group, in such capacity, whether the Indemnity Obligations are created by law, organizational or constituent documents, contract (including this Agreement) or otherwise. Notwithstanding the fact that the Member and its Affiliates other than the Company Group (such Persons, together with their respective heirs, successors and assigns, the “Sponsor Parties”) may have concurrent liability to an Indemnified Party with respect to the Indemnity Obligations, the Company hereby agrees that in no event shall the Company or any other member of the Company Group have any right or claim against any of the Sponsor Parties for contribution or have rights of subrogation against any Sponsor Parties through an Indemnified Party for any payment made by the Company or any of its Subsidiaries with respect to any Indemnity Obligation. In addition, the Company hereby agrees that in the event that any Sponsor Party pays or advances to an Indemnified Party any amount with respect to an Indemnity Obligation, the Company will, or will cause its Subsidiaries to, as applicable, promptly reimburse such Sponsor Party for such payment or advance upon request.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Investment Group LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, partnership representative, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and reasonable counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, partnership representative, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). ) Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including reasonable attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including reasonable attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Birgo Reiturn Fund Manager LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the Manager ~~(and its officers)~~ or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the~~ Manager shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters ~~the director or officer of~~ the Manager reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Emporium Realty Fund I, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ ‎ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ ‎ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ ‎ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ ‎ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ ‎‎ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ ‎ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ ‎ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ ‎ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ ‎ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ ‎ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ ‎ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ ‎ Section 5.4 or any portion of this ~~‎Section~~ ‎ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ ‎ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ ‎ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ ‎ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ ‎ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise Real Estate Investment Trust, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Wahed Real Estate Series 1 LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person's fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person's fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Getaway Collection LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non- appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “”Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager of the Company under Delaware law, a director or officer~~ Manager of the Company or ~~any Subsidiary~~ such Series under Texas law, an Officer of the Company or associated with such Series, a member of the ~~Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the Manager ~~(and its officers)~~ or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or any other~~ a court of competent jurisdiction in the State of ~~Delaware~~ Texas for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Manager, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the ~~Delaware Act~~TBOC. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the~~ Manager shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters ~~the director or officer of~~ the Manager reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement

Exculpation, Indemnification, Advances and Insurance. ‌ (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non- appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “”Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Series Limited Liability Company Agreement (Tirios Propco Series LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~law (except in instances of fraud, gross negligence or willful misconduct), against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~law if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, gross negligence or willful misconduct. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware or the State of New York for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of ~~such~~ a court’s decision to provide indemnification ~~by a court~~ shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law, subject to the standard of conduct set forth in such Section 5.19(a). The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och-Ziff Capital Management Group LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “”Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Series Limited Liability Company Agreement (Tirios Propco Series LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters ~~partner~~representative, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any ~~investment made or held by~~ Subsidiary of the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under ~~Delaware~~ Nevada law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters ~~partner~~representative, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager~~; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any ~~other~~ court of competent jurisdiction in the State of ~~Delaware~~ Nevada for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Nevada Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (World Tree Usa, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) ~~(collectively, “Expenses and Liabilities”)~~ arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s 's status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Investment Group LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any mistakes or errors in judgment, or for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, that the Indemnified Persons believed to be within the scope of their authority granted hereunder; provided, that each Indemnified Person may be liable to the Company for Expenses and Liabilities (as defined below) arising out of any acts or omissions of such Indemnified Person constituting fraud, gross negligence, or reckless disregard of his, her or its obligations and duties to the Company. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, ~~a director or~~ an officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company~~. Without limitation~~; provided, ~~the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of~~ that the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, shall not be required to ~~enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of~~ indemnify any Indemnified Person ~~having or potentially having liability~~ for any Expenses and Liabilities arising out of any acts or omissions of such ~~indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each~~ Indemnified Person constituting fraud, gross negligence, willful misconduct or reckless disregard of his, her or its obligations and duties to the ~~fullest extent permitted by law~~Company. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ this Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.6 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the ~~directors of the Sponsor~~ Board Members who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.6(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.6(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.6(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.6(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.6. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, ~~vote of Members~~ or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.6(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.6 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.6(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.6 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.6. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.6 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.6. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any ~~Company Subsidiary or~~ Affiliate similar to those conferred in this ~~‎Section 5.4~~ Section 5.6 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.6 or any portion of this ~~‎Section 5.4~~ Section 5.6 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.6 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.6 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.6, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 5.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Ys Re Raf I LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “”Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Paradyme Fund a Ii, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is either (i) not permitted by applicable law; or (b) not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager~~; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (FundRebel Dean, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed - 27 - by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (RSE Archive, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.7, the ~~Indemnified~~ Protected Persons shall not be liable to ~~the Company,~~ any ~~Subsidiary of the Company, any officer of the~~ Company ~~or a Subsidiary, or any~~ Group Member or any ~~holder of any equity interest in any Subsidiary of the Company,~~ Series Member for any acts or omissions by any of the ~~Indemnified~~ Protected Persons arising from the exercise of their rights or performance of their duties and obligations in connection with ~~the Company~~any Company Group Member, this ~~Agreement~~ Agreement, any Series Designation, or any investment made or held by ~~the Company~~a Company Group Member, including with respect to any acts or omissions made while serving at the request of the ~~Company~~ Managing Member as an officer, director, ~~member, partner, tax matters partner, fiduciary~~ or ~~trustee~~ manager of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud or willful misconduct. The ~~Indemnified~~ Protected Persons shall be indemnified by the Company and, to the extent the indemnification obligation is associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all claims, actions, obligations, expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis~~disbursements) (collectively, “~~Expenses and Liabilities~~Losses”) arising from the performance or non-performance of any of their duties or obligations in connection with their service to ~~the~~ any Company Group Member or this Agreement, or any investment made or held by ~~the Company~~any Company Group Member, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ Protected Person, provided that this indemnification shall not cover Losses that arise out of the ~~Company under Delaware law~~acts or omissions of any Protected Person that have been determined in a final, non-appealable decision of a ~~director~~ court, arbitrator or ~~officer~~ other tribunal of ~~the Company~~ competent jurisdiction to have resulted primarily from such Protected Person’s fraud or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Companywillful misconduct. Without limitation, the foregoing indemnity shall extend to any liability of any ~~Indemnified Person,~~ Protected Person pursuant to a loan guaranty or otherwise, for any indebtedness of ~~the~~ any Company ~~or any Subsidiary of the Company~~ Group Member (including any ~~indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to~~Extraordinary Loan), and the ~~Manager (and its officers) are~~ Managing Member is hereby authorized and empowered, on behalf of ~~the Company~~any Company Group Member, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any ~~Indemnified~~ Protected Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each ~~Indemnified~~ Protected Person to the fullest extent permitted by law, provided that this indemnification shall not cover Losses that arise out of the acts or omissions of any Protected Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Protected Person’s fraud or willful misconduct. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of ~~an Indemnified~~ a Protected Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the ~~Indemnified~~ Protected Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the ~~extent, however,~~ extent that ~~an Indemnified~~ a Protected Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such ~~Indemnified~~ Protected Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such ~~Indemnified~~ Protected Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified~~ Any Protected Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the ~~Indemnified~~ Protected Person is proper in the circumstances because such ~~Indemnified~~ Protected Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the ~~Indemnified~~ Protected Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the ~~Company~~ Managing Member promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified~~ Protected Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To Except in the case of a Protected Person who is subject to a claim of Losses by an aShareX Entity, to the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an ~~Indemnified~~ Protected Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such ~~Indemnified~~ Protected Person to repay such amount if it shall ultimately be determined that such ~~Indemnified~~ Protected Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to ~~an Indemnified~~ a Protected Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the ~~Indemnified~~ Protected Person unless otherwise provided in a written agreement with such ~~Indemnified~~ Protected Person or in the writing pursuant to which such ~~Indemnified~~ Protected Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each ~~Indemnified~~ Protected Person as to ~~expenses (including attorneys’ fees), judgments, fines, and amounts~~ Losses paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the ~~Indemnified~~ Protected Persons may, in the performance of ~~his, her or~~ its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of ~~the~~ a Company Group Member or any Series in furtherance of the interests of ~~the~~ a Company Group Member in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Protected Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (aShareX Fine Art, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the ~~Company,~~ Company for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~law (except in instances of fraud, gross negligence or willful misconduct), against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by ~~law~~law if such Indemnified Person acted in a manner not constituting fraud, gross negligence or willful misconduct. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, gross negligence or willful misconduct. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware or the State of New York for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of ~~such~~ a court's decision to provide indemnification ~~by a court~~ shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law, subject to the standard of conduct set forth in such Section 5.19(a). The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s 's status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s 's professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Och Daniel)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V~~Agreement, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, manager, member, ~~partner, tax matters~~ partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Board Member, director, manager or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, manager, member, partner, ~~tax matters partner~~Partnership Representative, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Administrative Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.7 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.7(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.8, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.7 (unless ordered by a court) shall be made by the Company ~~unless~~ regardless of whether the ~~Manager~~ Board determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 2.10 or Section 5.7(a)~~. Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person~~, ~~by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent~~provided, however, that Company shall not be obligated to make any payment to an Indemnified Person ~~has been successful on the merits~~ if such indemnity payments are finally determined by a court of competent jurisdiction in a final judgment, not subject to appeal, to be unlawful or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person ~~had~~ has not met the applicable ~~standard~~ standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 2.10 or Section 5.7(a). In such case, such Indemnified Person shall, within 30 days, repay any amounts received pursuant to Section 5.7(a) and shall thereafter, not be entitled to indemnification pursuant thereto. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person~~ The Company may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for ~~indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be~~ a determination by such court that indemnification of the Indemnified Person is not proper in the circumstances because such Indemnified Person has not met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c~~Section 5.7(a) ~~nor the absence of any determination thereunder shall be a defense to such application~~ or ~~create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct~~Section 2.10. Notice of any application ~~for indemnification~~ pursuant to this ~~‎Section 5.4(d~~Section 5.7(d) shall be given to the ~~Company~~ Indemnified Person promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified Person seeking indemnification~~ Company shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’ fees) incurred by an Indemnified Person in~~ defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.7. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.7 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the ~~Manager~~Board, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.7(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.7 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.7(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.7 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.7. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.7 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.7. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section 5.4~~ Section 5.7 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.7 or any portion of this ~~‎Section 5.4~~ Section 5.7 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.7 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.7 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.7, to the maximum extent permitted by law. (n) The ~~directors~~ directors, managers and officers of the ~~Manager~~ Managers shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or ~~the~~ any Manager or by any other Person as to matters the ~~director~~ director, manager or officer of ~~the~~ a Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 5.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (StartEngine Real Estate REIT 1 LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorneys fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorneys fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorneys fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the - 28 - Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (RSE Collection, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Series, any Subsidiary of ~~the Company~~any Series, any ~~officer~~ Director of the Company or ~~a Subsidiary~~associated with any Series, or any Member or any holder of any equity interest in any Subsidiary of ~~the Company~~any Series, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “"Expenses and Liabilities”") arising from the performance of any of their duties or obligations in connection with their service to the Company and/or each such Series or this Agreement, or any investment made or held by the Company, each such Series or any Subsidiaries of such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or associated with such Series or any Subsidiary of ~~the Company or the Manager~~such Series, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the ~~Company~~Company or on behalf of such Series. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series (including any indebtedness which the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.6 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.6(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this ~~Agreement~~Agreement and the Bylaws, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.8, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.6 (unless ordered by a court) shall be made by the Company and each applicable Series unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.6(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.6(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.6(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.6(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.6(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company and each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company and each such Series as authorized in this ~~‎Section 5.4~~Section 5.6. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.6(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.6 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.6(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.6 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s 's status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.6. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.6 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.6. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and/or such Series and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.6 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.6 or any portion of this ~~‎Section 5.4~~ Section 5.6 shall be invalidated on any ground by a court of competent jurisdiction the Company and each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.6 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~Company or such Series. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.6 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.6, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company and/or associated with any Series or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s 's professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Etre Reit, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary,~~ any Series or ~~any Member~~ its or ~~any holder of any equity interest in any Subsidiary of the Company,~~ their Member(s) or Series Members for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this ~~Agreement~~ Agreement, or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or Manager or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner~~fiduciary, ~~fiduciary~~ advisor, agent, representative, or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non- appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct, or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and ~~liabilities (~~liabilities, including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the ~~Company~~ Company, and counsel fees and disbursements on a solicitor and client ~~basis)~~ basis (collectively, ~~“Expenses and Liabilities”~~"Expenses") arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, ~~investigative~~ investigative, or other action, ~~suit~~ suit, or ~~proceeding~~ Proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ Manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary of the Company or the Manager~~associated with such Series, or an officer, director, member, partner, ~~tax matters partner~~fiduciary, ~~fiduciary~~ advisor, agent, representative, or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification does not cover Expenses that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator, or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person's fraud, willful misconduct, or gross negligence. Without limitation, the foregoing indemnity ~~shall extend~~ extends to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness ~~which~~ that the Company or ~~any Subsidiary of the Company~~ such Series has assumed or taken subject to), and the Manager ~~(and its officers)~~ or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 6.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 6.5(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator, or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person's fraud, willful misconduct, or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, ~~including ‎Section 5.6,~~ are agreed by each Member and Series Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 6.5 (unless ordered by a court) shall be made by the ~~Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, ~~suit~~ suit, or proceeding described above, or in defense of any claim, ~~issue~~ issue, or matter therein, such Indemnified Person shall be indemnified against ~~expenses~~ Expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.5(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 6.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 6.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, ~~expenses~~ Expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, ~~administrative~~ administrative, or investigative action, ~~suit~~ suit, or ~~proceeding shall~~ Proceeding may, at the option of the Manager, be paid by the ~~Company~~ applicable Series in advance of the final disposition of such action, ~~suit~~ suit, or ~~proceeding~~ Proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it ~~shall~~ is ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 6.5. (f) The indemnification and advancement of ~~expenses~~ Expenses provided by or granted pursuant to this ~~‎Section 5.4 shall~~ Section 6.5 is not ~~be deemed~~ exclusive of any other rights to which those seeking indemnification or advancement of ~~expenses~~ Expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager, vote of Members~~ or otherwise, and ~~shall~~ will continue as to an Indemnified Person who has ceased to serve in such capacity and ~~shall inure~~ inures to the benefit of the heirs, successors, ~~assigns~~ assigns, and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company and its Series that indemnification of the ~~persons~~ Persons specified in Section ~~5.4(a~~6.5(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 6.5 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 6.5(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (g) The Company and any Series may, but ~~shall~~ is not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 6.5 or elsewhere in this Agreement against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s 's status as such, regardless of whether ~~or not~~ the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~6.5. (h) ~~The indemnification and advancement of expenses provided by, or granted pursuant to,~~ If this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 6.5 or any portion of this ~~‎Section 5.4 shall be~~ Section 6.5 is invalidated on any ground by a court of competent ~~jurisdiction~~ jurisdiction, the Company and each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, ~~proceeding~~ Proceeding, or investigation, whether civil, ~~criminal~~ criminal, or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 6.5 that ~~shall~~ has not ~~have~~ been invalidated. (ki) Each of the Indemnified Persons may, in the performance of his, ~~her~~ her, or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (lj) An Indemnified Person ~~shall~~ will not be denied indemnification in whole or in part under this ~~‎Section 5.4 because~~ Section 6.5 as a result of the Indemnified Person ~~had~~ having an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by ~~the terms of~~ this Agreement and any applicable Series Agreement. (mk) Any liabilities ~~which~~ that an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, ~~administration~~ administration, or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, ~~trust~~ trust, or other funding mechanism, or otherwise) shall be treated as ~~liabilities~~ Expenses indemnifiable under this ~~‎Section 5.4~~Section 6.5, to the maximum extent permitted by law. (nl) The ~~directors and officers of the~~ Manager shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and its Series and on such information, opinions, ~~reports~~ reports, or statements presented to the Company by any of the ~~officers~~ Officers or employees or representatives or advisors of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the~~ Manager reasonably believes are within such other Person’s 's professional or expert competence. (om) Any amendment, ~~modification~~ modification, or repeal of this ~~‎Section 5.4~~ Section 6.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 6.5 as in effect immediately prior to such amendment, ~~modification~~ modification, or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, ~~modification~~ modification, or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, ~~modification~~ modification, or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (OneDoor Studios Entertainment Properties LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in ~~equity, including ‎Section 5.6,~~ equity are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the ~~Manager;~~ Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and ~~omissions;~~ omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary~~ officer of the Company, ~~any officer of the Company or a Subsidiary,~~ or any Member ~~or any holder of any equity interest in any Subsidiary~~ of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under ~~Delaware~~ New Hampshire law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section ~~5.4~~ 5.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.5(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) Notwithstanding anything to the contrary in this Agreement, nothing in this Article V shall eliminate or limit the personal liability of Indemnified Persons to the Company or its Members for monetary damages or breach of fiduciary duty for (i) any breach of the Indemnified Persons’ duty of loyalty to the Company in its capacity as a Manager or on behalf of its Manager, which duty of loyalty shall be similar to the duty of loyalty a director owes to a corporation under the NHBCA; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction from which the Indemnified Persons derived an improper personal benefit; and (iv) for unlawful payment of distributions or purchase or redemption of limited liability company units, similar to the limitation imposed on directors of a corporation under the NHBCA. All references in this Section 5.5(b) to an Indemnified Person and Manager shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of this Agreement, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Manager. (c) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, ~~including ‎Section 5.6,~~ are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (cd) Any indemnification under this ‎Section ~~5.4~~ 5.5 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Such determination shall be made in good faith by the Manager; , provided that if the Manager or any of its Affiliates is the Indemnified Person, by ~~a majority vote of~~ the ~~directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~Independent Representative. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). (de) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.5(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any other court of competent jurisdiction in the State of ~~Delaware~~ New Hampshire for indemnification to the extent otherwise permissible under ‎‎Section ~~5.4(a~~5.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ef) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section ~~5.4~~5.5. (fg) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section ~~5.4~~ 5.5 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.5(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.5 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.5(a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (gh) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.5 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.45.5. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mj) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section ~~5.4~~5.5, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (ok) Any amendment, modification or repeal of this ‎Section ~~5.4~~ 5.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (One Chestnut Realty LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VV of the OPERATING AGREEMENT, to the fullest extent permitted by applicable law, the ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) shall not be liable to the ~~Company~~COMPANY, any Subsidiary of the ~~Company~~COMPANY, any officer of the ~~Company~~ COMPANY or a Subsidiary, or any ~~Member or any holder~~ Shareholder of any equity interest in any Subsidiary of the ~~Company~~COMPANY, for any acts or omissions by any of the ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~COMPANY, this ~~Agreement~~ OPERATING AGREEMENT or any investment made or held by the ~~Company~~COMPANY, including with respect to any acts or omissions made while serving at the request of the ~~Company~~ COMPANY as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another ~~Person~~ person, or entity, or any employee benefit plan. The ~~Indemnified Persons~~ INDEMNIFIED PERSON(S) shall be indemnified by the ~~Company~~ COMPANY to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the ~~Company~~ COMPANY and counsel fees and disbursements on a solicitor and client basis) (collectively, “"Expenses and Liabilities”") arising from the performance of any of their duties or obligations in connection with their service to the ~~Company~~ COMPANY or this ~~Agreement~~OPERATING AGREEMENT, or any investment made or held by the ~~Company~~COMPANY, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such ~~Person~~ person, or entity, may hereafter be made party by reason of being or having been a ~~manager~~ MANAGING MEMBER or member of the ~~Company~~ BOARD OF DIRECTORS of the COMPANY under ~~Delaware~~ Florida law, a director or officer of the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY or the ~~Manager~~MANAGING MEMBER or member of the BOARD OF DIRECTORS, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another ~~Person~~ person or any employee benefit plan at the request of the ~~Company~~COMPANY. Without limitation, the foregoing indemnity shall extend to any liability of any ~~Indemnified Person~~INDEMNIFIED PERSON(S), pursuant to a loan guaranty or otherwise, for any indebtedness of the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY (including any indebtedness which the ~~Company~~ COMPANY or any Subsidiary of the ~~Company~~ COMPANY has assumed or taken subject to), and the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS (and its officers) are hereby authorized and empowered, on behalf of the ~~Company~~COMPANY, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 of the OPERATING AGREEMENT in favor of any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) of this OPERATING AGREEMENT that the ~~Company~~ COMPANY indemnify each ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to the fullest extent permitted by law. (b) The provisions of this ~~Agreement~~OPERATING AGREEMENT, to the extent they restrict the duties and liabilities of an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.6 of this OPERATING AGREEMENT, are agreed by each ~~Member~~ Shareholder to modify such duties and liabilities of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 of the OPERATING AGREEMENT (unless ordered by a court) shall be made by the ~~Company~~ COMPANY unless the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS determines in the specific case that indemnification of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the ~~Manager; provided that if the Manager~~ MANAGING MEMBER or ~~its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~BOARD OF DIRECTORS. To the extent, however, that an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS that the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c)) of this OPERATING AGREEMENT, and notwithstanding the absence of any determination thereunder, any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) may apply to the Court of ~~Chancery~~ NEW CASTLE of the State of ~~Delaware~~ Florida or any other court of competent jurisdiction in the State of ~~Delaware~~ Florida for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. The basis of such indemnification by a court shall be a determination by such court that indemnification of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is proper in the circumstances because such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a)) of this OPERATING AGREEMENT. Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) of this OPERATING AGREEMENT, nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) of this OPERATING AGREEMENT shall be given to the ~~Company~~ COMPANY promptly upon the filing of such application. If successful, in whole or in part, the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the ~~Company~~ COMPANY in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) to repay such amount if it shall ultimately be determined that such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is not entitled to be indemnified by the ~~Company~~ COMPANY as authorized in Section 5.4 of this ~~‎Section 5.4~~OPERATING AGREEMENT. (f) The indemnification and advancement of expenses provided by or granted pursuant to Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement~~OPERATING AGREEMENT, or any other agreement, determination of the ~~Manager~~MANAGING MEMBER, the BOARD OF DIRECTORS, a vote of ~~Members~~ the Shareholders or otherwise, and shall continue as to an ~~Indemnified Person~~ INDEMNIFIED PERSON(S) who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) unless otherwise provided in a written agreement with such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) or in the writing pursuant to which such ~~Indemnified Person~~ INDEMNIFIED PERSON(S) is indemnified, it being the policy of the ~~Company~~ COMPANY that indemnification of the persons specified in Section 5.4(a) of this OPERATING AGREEMENT shall be made to the fullest extent permitted by law. The provisions of ~~this~~ Section 5.4 of the OPERATING AGREEMENT shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) of this OPERATING AGREEMENT but whom the ~~Company~~ COMPANY has the power or obligation to indemnify under the provisions of the ~~Delaware Act~~FLORIDA ACT. (g) The ~~Company~~ COMPANY may, but shall not be obligated to, purchase and maintain insurance on behalf of any ~~Person~~ Person(s) entitled to indemnification under ~~this~~ Section 5.4 of the OPERATING AGREEMENT against any liability asserted against such ~~Person~~ Person(s) and incurred by such ~~Person~~ person(s) in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ person's status as such, whether or not the ~~Company~~ COMPANY would have the power or the obligation to indemnify such ~~Person~~ person(s) against such liability under the provisions of Section 5.4 of this ~~Section 5.4~~OPERATING AGREEMENT. (h) The indemnification and advancement of expenses provided by, or granted pursuant ~~to, this~~ to Section 5.4 of this OPERATING AGREEMENT shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under Section 5.4 of this ~~Section 5.4~~OPERATING AGREEMENT. (i) The ~~Company~~ COMPANY may, to the extent authorized from time to time by the ~~Manager~~MANAGING MEMBER or BOARD OF DIRECTORS, provide rights to indemnification and to the advancement of expenses to employees and agents of the ~~Company~~ COMPANY and to the employees and agents of any ~~Company~~ COMPANY Subsidiary or ~~Affiliate~~ AFFILIATE similar to those conferred in Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT to ~~Indemnified Persons~~INDEMNIFIED PERSONS. (j) If Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT, or any portion of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT shall be invalidated on any ground by a court of competent jurisdiction the ~~Company~~ COMPANY shall nevertheless indemnify each ~~Indemnified Person~~ INDEMNIFIED PERSON(S) as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the ~~Company~~COMPANY, to the full extent permitted by any applicable portion of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT that shall not have been invalidated. (k) Each of the ~~Indemnified Persons~~ INDEMNIFIED PERSONS may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such ~~Person~~ person (or entity) on behalf of the ~~Company~~ COMPANY in furtherance of the interests of the ~~Company~~ COMPANY in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person (or entity) will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~COMPANY. (l) ~~An Indemnified Person~~ INDEMNIFIED PERSON(S) shall not be denied indemnification in whole or in part under Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT because the ~~Indemnified Person~~ INDEMNIFIED PERSON(S) had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this ~~Agreement~~OPERATING AGREEMENT. (m) Any liabilities which an ~~Indemnified Person~~ INDEMNIFIED PERSON incurs as a result of acting on behalf of the ~~Company~~ COMPANY (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under Section 5.4 of this ~~‎Section 5.4~~OPERATING AGREEMENT, to the maximum extent permitted by law. (n) The directors and officers of the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS shall, in the performance of his or / her / its duties, be fully protected in relying in good faith upon the records of the ~~Company~~ COMPANY and on such information, opinions, reports or statements presented to the ~~Company~~ COMPANY by any of the officers or employees of the ~~Company or~~ COMPANY, the ~~Manager~~ MANAGING MEMBER, the BOARD OF DIRECTORS, or by any other ~~Person~~ person as to matters the director or officer of the ~~Manager~~ MANAGING MEMBER or BOARD OF DIRECTORS reasonably believes are within such other ~~Person’s~~ person's professional or expert competence. (o) Any amendment, modification or repeal of Section 5.4 of this ~~‎Section 5.4~~ OPERATING AGREEMENT, or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ INDEMNIFIED PERSON(S) under ~~this~~ Section 5.4 of this OPERATING AGREEMENT as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such ~~Person~~ person became an ~~Indemnified Person~~ INDEMNIFIED PERSON hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Anabasis Real Estate Investment Trust, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ ‎ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ ‎ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ ‎ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth ~~in ‎‎Section~~ in‎‎ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ‎‎Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ ‎ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ ‎ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ ‎ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ ‎ Section 5.4 or any portion of this ~~‎Section~~ ‎ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ ‎ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ ‎ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ ‎ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ ‎ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise West Coast Opportunistic REIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article ~~V, to the fullest extent permitted by applicable law~~V including Section 5.07, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ Managing Member of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.05(a) in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.05(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.07, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.05 (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorneys fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.05(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.05(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.05(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.05(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorneys fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section 5.05. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.05 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.05(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.05(f) shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.05(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.05 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.05. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.05 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.05. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section 5.05 or any portion of this ~~‎Section 5.4~~ Section 5.05 shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.5 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company.~~such Indemnified Person. 20 (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.05 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.05, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.05 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.05 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Neptune REM, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article VVI, to the fullest extent permitted by applicable ~~law~~Law: (i) none of the Oaktree Member, the ~~Indemnified Persons~~ Brookfield Member or their respective Affiliates shall ~~not be liable~~ have any liability to the Company, any Subsidiary of the Company, any ~~officer of the Company or a Subsidiary~~Director, or any other Member or any holder of ~~any~~ an equity interest in any Subsidiary of the Company, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of ~~the Indemnified Persons arising from the exercise of their rights~~ fact or ~~performance of their duties and obligations~~ error in ~~connection with~~ judgment, taken, suffered or made; (ii) a Director or Officer shall have liability to the Company, ~~this Agreement or~~ any ~~investment made or held by~~ Subsidiary of the Company, any Director, any Member or any holder of an equity interest in any Subsidiary of the Company, for any act or omission, including ~~with respect~~ any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any ~~acts~~ federal or ~~omissions made while serving at~~ state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the ~~request~~ business or properties of the Company ~~as an officer~~Group or (B) fraud; and (iii) all other Indemnified Persons shall have liability to the Company, ~~director~~any Subsidiary of the Company, ~~member~~any Director, ~~partner, tax matters partner, fiduciary or trustee of another Person~~ any Member or any ~~employee benefit plan.~~ holder of (b) The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from (x) the performance of any of their respective duties or obligations in connection with their respective service to the Company, to any Subsidiary of the Company or pursuant to this ~~Agreement,~~ Agreement or (y) or in connection with any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Company, to which any such Indemnified Person may hereafter be made party by reason of being or having been an Indemnified Person, except: (i) with respect to a ~~manager~~ Director or Officer, to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Director or Officer imposed pursuant to Section 6.20(a) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company ~~under Delaware law~~Group or (B) fraud; and (ii) with respect to all Indemnified Persons (other than Directors, Officers and the Oaktree Member, the Brookfield Member or their respective Affiliates), to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (c) The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person breached any duty or committed (i) willful malfeasance, gross negligence, a ~~director~~ felony or ~~officer~~ a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Company Group or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (~~including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers~~ii) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by lawfraud. (bd) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 6.20, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 6.16 (unless ordered by a ~~court~~court or arbitral panel of competent jurisdiction) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 6.16(b). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~6.16(e), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 6.16(b). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable ~~standards~~ standard of conduct set forth in ‎‎Section 5.4(a). Neither a contrary determination in the specific case under ‎Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.set

Appears in 1 contract

Samples: Operating Agreement (Oaktree Capital Group, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ ‎ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~‎ Section 5.4.(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ ‎ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ ‎ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.4.(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.4.(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.4.(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~‎‎ Section 5.4.(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.4.(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~‎ Section 5.4.(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~‎ Section 5.4.(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ ‎ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ ‎ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.4.(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~‎ Section 5.4.(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ ‎ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ ‎ Section 5.4 or any portion of this ~~‎Section~~ ‎ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ ‎ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ ‎ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ ‎ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ ‎ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise Equity REIT, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorneys fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorneys fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorneys fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (RSE Collection, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ officer, tax matters partner, or Partnership Representative of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ ‎ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ ‎ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ ‎ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ ‎ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ ‎‎ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ ‎ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ ‎ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ ‎ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ ‎ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ ‎ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ ‎ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ ‎ Section 5.4 or any portion of this ~~‎Section~~ ‎ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ ‎ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ ‎ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ ‎ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ ‎ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise eFund, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V5, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any ~~Subsidiary~~ officer of the Company, ~~any officer of the Company or a Subsidiary,~~ or any Member ~~or any holder of any equity interest in any Subsidiary~~ of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under ~~Delaware~~ Washington law, a director or officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section ~~5.4~~ 5.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.5(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) Notwithstanding anything to the contrary in this Agreement, nothing in this Article 5 shall eliminate or limit the personal liability of Indemnified Persons to the Company or its Members for monetary damages or breach of fiduciary duty for: (i) any breach of the Indemnified Persons’ duty of loyalty to the Company in its capacity as a Manager, which duty of loyalty shall be similar to the duty of loyalty a director owes to a corporation under the WBCA; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for any transaction from which the Indemnified Persons derived an improper personal benefit; and (iv) for unlawful payment of distributions or purchase or redemption of limited liability company units, similar to the limitation imposed on directors of a corporation under the WBCA. All references in this Section 5.5(b) to an Indemnified Person and a Manager shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of this Agreement, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Managers. (c) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, ~~including ‎Section 5.6,~~ are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (cd) Any indemnification under this ‎Section ~~5.4~~ 5.5 (unless ordered by a court) shall be made by the Company unless the ~~Manager determines~~ Managers determine in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Such determination shall be made in good faith by the ~~Manager;~~ Managers, provided that if ~~the Manager~~ a Managers or ~~its~~ any of his Affiliates is the Indemnified Person, by ~~a majority vote of~~ the ~~directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~Independent Representative. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Managers that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). (de) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.5(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any other court of competent jurisdiction in the State of ~~Delaware~~ Washington for indemnification to the extent otherwise permissible under ‎‎Section ~~5.4(a~~5.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ‎‎Section ~~5.4(a~~5.5(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (ef) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ‎Section ~~5.4~~5.5. (fg) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section ~~5.4~~ 5.5 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the ~~Manager~~Managers, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.5(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.5 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.5(a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (gh) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.5 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.45.5. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; , provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (mj) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section ~~5.4~~5.5, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (ok) Any amendment, modification or repeal of this ‎Section ~~5.4~~ 5.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 5.5 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Solis Seattle, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V‎V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Series, any Subsidiary of ~~the Company~~any Series, any ~~officer~~ Director of the Company or ~~a Subsidiary~~associated with any Series, or any Member or any holder of any equity interest in any Subsidiary of ~~the Company~~any Series, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “"Expenses and Liabilities”") arising from the performance of any of their duties or obligations in connection with their service to the Company and/or each such Series or this Agreement, or any investment made or held by the Company, each such Series or any Subsidiaries of such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or associated with such Series or any Subsidiary of ~~the Company or the Manager~~such Series, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the ~~Company~~Company or on behalf of such Series. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series (including any indebtedness which the ~~Company~~ Company, any Series or any Subsidiary of ~~the Company~~ any Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ‎Section ~~5.4~~ 5.5 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ‎Section ~~5.4(a~~5.5(a) that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law.. 30 (b) The provisions of this ~~Agreement~~Agreement and the Bylaws, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ‎Section ~~5.6~~5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ‎Section ~~5.4~~ 5.5 (unless ordered by a court) shall be made by the Company and each applicable Series unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎Section 5.5(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ ' fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎Section 5.5(a). (d) Notwithstanding any contrary determination in the specific case under ~~Section 5.4(c~~‎Section 5.5(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~‎Section 5.5(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~‎Section 5.5(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.5(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ‎Section ~~5.4(d~~5.5(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.. 31 (e) To the fullest extent permitted by law, expenses (including attorneys’ ' fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company and each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company and each such Series as authorized in this ‎Section ~~5.4~~5.5. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ‎Section ~~5.4~~ 5.5 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~‎Section 5.5(a) shall be made to the fullest extent permitted by law. The provisions of this ~~Section 5.4~~ ‎Section 5.5 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.5(a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this ~~Section 5.4~~ ‎Section 5.5 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s 's status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~‎Section 5.5. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this ~~Section 5.4~~ ‎Section 5.5 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~‎Section 5.5. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and/or such Series and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ‎Section ~~5.4~~ 5.5 to Indemnified Persons. (j) If this ‎Section ~~5.4~~ 5.5 or any portion of this ‎Section ~~5.4~~ 5.5 shall be invalidated on any ground by a court of competent jurisdiction the Company and each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ ' fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section ~~5.4~~ 5.5 that shall not have been invalidated.. 32 (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the ~~Company~~Company or such Series. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section ~~5.4~~ 5.5 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section ~~5.4~~5.5, to the maximum extent permitted by law. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company and/or associated with any Series or any other Group Member, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s 's professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section ~~5.4~~ 5.5 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this ~~Section 5.4~~ ‎Section 5.5 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Etre Reit, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ Director of the ~~Company or a Subsidiary~~Company, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the ~~exercise of their rights or~~ performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the ~~Company~~ Company, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) ~~(collectively, “Expenses and Liabilities”)~~ arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the ~~Company~~Company or any of its Subsidiaries, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a ~~director~~ Director or ~~officer~~ Officer of the Company or any Subsidiary of the ~~Company or the Manager~~Company, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.19 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.19(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. The termination of any action, suit or proceeding relating to or involving an Indemnified Person by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person committed an act or omission that constitutes fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.23, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.19 (unless ordered by a court) shall be made by the Company unless the ~~Manager~~ Board of Directors determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Directors who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Board of Directors that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.19(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.19(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~Section 5.19(a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 5.19(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.19(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.19. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.19 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, ~~determination of the Manager,~~ vote of Members or disinterested Directors or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.19(a) shall be made to the fullest extent permitted by law with respect to a limited liability company organized under Delaware law. The provisions of this Section ~~5.4~~ 5.19 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~Section 5.19(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.19 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.19. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.19 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.19. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of ~~any~~ the Company ~~Subsidiary or Affiliate~~ Group similar to those conferred in this ~~‎Section 5.4~~ Section 5.19 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.19 or any portion of this ~~‎Section 5.4~~ Section 5.19 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.19 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.19 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the United States Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.19, ~~to the maximum extent permitted by law~~unless such liabilities arise as a result of such Indemnified Person’s fraud, willful misconduct or gross negligence. (n) ~~The directors and officers of the Manager~~ A Director shall, in the performance of his ~~or her~~ duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Company’s Officers or employees of the Company Group, or committees of the ~~Manager~~ Board of Directors, or by any other Person as to matters the ~~director or officer of the Manager~~ Director reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.19 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of ~~or other rights of~~ any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ 5.19 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Fortress Investment Group Holdings LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.6, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company ~~or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company,~~ for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any property, each such property, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under ~~Delaware~~ Texas law, ~~a director or officer~~ an Officer of the ~~Company or any Subsidiary of the Company or the Manager~~Company, or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company ~~or any Subsidiary of the Company~~ (including any indebtedness which ~~the Company or any Subsidiary of~~ the Company has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Party that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Persons fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable ~~standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager~~ property or ~~its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~SPE owning any property. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including ~~attorneys’~~ attorney’s fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to ~~the Court of Chancery of the State of Delaware or~~ any ~~other~~ court of competent jurisdiction in the State of ~~Delaware~~ Texas for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including ~~attorneys’~~ attorney’s fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable property or SPE owning any property in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified ~~by the Company~~ as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement~~, determination of the Manager~~, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company has the power or obligation to indemnify under the provisions of the ~~Delaware Act~~TBOC. (g) The ~~Company may~~Company, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such ~~Person’s~~ Persons status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the ~~Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~Company. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable property or SPE owning property shall nevertheless indemnify each Indemnified Person as to expenses (including ~~attorneys’~~ attorney’s fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company ~~or the Manager~~ or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other ~~Person’s~~ Persons professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Bran Urban Growth Fund LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article~~ ARTICLE V, ~~to the fullest extent permitted by applicable law~~including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person; provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law; provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Ysmd, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any ~~officer~~ officer, tax matters partner, or Partnership Representative of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ Section 5.4 or any portion of this ~~‎Section~~ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise eFund, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis~~) (collectively, “Expenses and Liabilities”~~) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section~~ ‎ Section 5.4 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section~~ ‎ Section 5.4(a) that the Company indemnify each Indemnified Person to the fullest extent permitted by law. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ ‎ Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section~~ ‎ Section 5.4 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). (d) Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section~~ ‎‎ Section 5.4(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section~~ ‎‎ Section 5.4(a). Neither a contrary determination in the specific case under ~~‎Section~~ ‎ Section 5.4(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section~~ ‎ Section 5.4(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section~~ ‎ Section 5.4. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section~~ ‎ Section 5.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law. The provisions of this Section 5.4 shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section~~ ‎ Section 5.4(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section 5.4 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section 5.4. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 5.4 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section 5.4. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any Company Subsidiary or Affiliate similar to those conferred in this ~~‎Section~~ ‎ Section 5.4 to Indemnified Persons. (j) If this ~~‎Section~~ ‎ Section 5.4 or any portion of this ~~‎Section~~ ‎ Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section~~ ‎ Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section~~ ‎ Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section~~ ‎ Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section~~ ‎ Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Fundrise eREIT XIV, LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this ~~Article V, to the fullest extent permitted by applicable law~~ARTICLE V including Section 5.7, the Indemnified Persons shall not be liable to the ~~Company, any Subsidiary of the Company, any officer of the~~ Company or ~~a Subsidiary, or~~ any ~~Member or any holder of any equity interest in any Subsidiary of the Company,~~ Series for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the ~~Company~~Company or any Series, this Agreement or any investment made or held by the ~~Company~~Company or any Series, including with respect to any acts or omissions made while serving at the request of the Company or on behalf of any Series as an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person~~ Person, other than such acts or ~~any employee benefit plan~~omissions that have been determined in a final, non-appealable decision of a court of competent jurisdiction to constitute fraud, willful misconduct or gross negligence. The Indemnified Persons shall be indemnified by the Company and, to the extent Expenses and Liabilities are associated with any Series, each such Series, in each case, to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “”Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or each such Series or this Agreement, or any investment made or held by the Company, each such Series, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a ~~manager~~ managing member of the Company or such Series under Delaware law, ~~a director or officer~~ an Officer of the Company or ~~any Subsidiary~~ associated with such Series, a member of the ~~Company or the Manager,~~ Advisory Board or an officer, director, member, partner, ~~tax matters partner,~~ fiduciary or trustee of another ~~Person or any employee benefit plan at the request~~ Person, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the ~~Company~~acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any ~~Subsidiary of the Company~~ Series (including any indebtedness which the Company or any ~~Subsidiary of the Company~~ Series has assumed or taken subject to), and the ~~Manager (and its officers)~~ Managing Member or the Officers are hereby authorized and empowered, on behalf of the ~~Company~~Company or any Series, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ paragraph that the Company and each applicable Series indemnify each Indemnified Person to the fullest extent permitted by law, provided that this indemnification shall not cover Expenses and Liabilities that arise out of the acts or omissions of any Indemnified Person that have been determined in a final, non-appealable decision of a court, arbitrator or other tribunal of competent jurisdiction to have resulted primarily from such Indemnified Person’s fraud, willful misconduct or gross negligence. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section 5.6~~Section 5.7, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the maximum extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section (unless ordered by a court) shall be made by ~~the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the~~ each applicable standard of conduct set forth in ‎‎Section 5.4(a). Such determination shall be made in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceedingSeries. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith~~, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ‎‎Section 5.4(a)~~. (d) ~~Notwithstanding any contrary determination in the specific case under Section 5.4(c), and notwithstanding the absence of any determination thereunder, any~~ Any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~paragraph (a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~paragraph (a). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~paragraph (c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d)~~ paragraph shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding ~~shall~~ may, at the option of the Managing Member, be paid by ~~the Company~~ each applicable Series in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by ~~the Company~~ each such Series as authorized in this ~~‎Section 5.4~~Section. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other ~~agreement, determination of the Manager~~agreement (including without limitation any Series Designation), vote of Members or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in ~~Section 5.4(a~~paragraph (a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ shall not be deemed to preclude the indemnification of any person who is not specified in ~~‎Section 5.4(a~~paragraph (a) but whom the Company or an applicable Series has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company and any Series may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this ~~Section 5.4~~Section. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this ~~Section 5.4~~Section. (i) The Company and any Series may, to the extent authorized from time to time by the ~~Manager~~Managing Member, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company ~~and to the employees and agents of any Company Subsidiary~~ or ~~Affiliate similar to those conferred in this ‎Section 5.4 to Indemnified Persons~~such Series. (j) If this ~~‎Section 5.4~~ Section or any portion of this ~~‎Section 5.4~~ Section shall be invalidated on any ground by a court of competent jurisdiction ~~the Company~~ each applicable Series shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal ~~counsel~~ counsel, accountants, and ~~accountants~~other experts, and any act or omission by such Person on behalf of the Company or any Series in furtherance of the interests of the Company or such Series in good faith in reliance upon, and in accordance with, the advice of such legal ~~counsel~~ counsel, accountants or ~~accountants~~ other experts will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal ~~counsel~~ counsel, accountants, or ~~accountants~~ other experts were selected with reasonable care by or on behalf of ~~the Company~~such Indemnified Person. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company or any Series (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section, to the maximum extent permitted by law. (n) The ~~directors and officers of the Manager~~ Managing Member shall, in the performance of ~~his or her~~ its duties, be fully protected in relying in good faith upon the records of the Company and any Series and on such information, opinions, reports or statements presented to the Company by any of the ~~officers~~ Officers or employees of the Company or ~~the Manager~~ associated with any Series, or by any other Person as to matters the ~~director or officer of the Manager~~ Managing Member reasonably believes are within such other Person’s professional or expert ~~competence~~competence (including, without limitation, the Advisory Board). (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any ~~Indemnified Person~~ indemnitee under this Section ~~5.4~~ as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an ~~Indemnified Person~~ indemnitee hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Series Limited Liability Company Agreement (Tirios Propco Series LLC)

Exculpation, Indemnification, Advances and Insurance. (a) Subject to other applicable provisions of this Article V, to the fullest extent permitted by applicable law, the Indemnified Persons shall not be liable to the Company, any Subsidiary of the Company, any officer of the Company or a Subsidiary, or any Member or any holder of any equity interest in any Subsidiary of the Company, for any mistakes or errors in judgment, or for any acts or omissions by any of the Indemnified Persons arising from the exercise of their rights or performance of their duties and obligations in connection with the Company, this Agreement or any investment made or held by the Company, including with respect to any acts or omissions made while serving at the request of the Company as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, that the Indemnified Persons believed to be within the scope of their authority granted hereunder; provided, that each Indemnified Person may be liable to the Company for Expenses and Liabilities arising out of any acts or omissions of such Indemnified Person constituting fraud, gross negligence, or reckless disregard of his, her or its obligations and duties to the Company. The Indemnified Persons shall be indemnified by the Company to the fullest extent permitted by law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”) arising from the performance of any of their duties or obligations in connection with their service to the Company or this Agreement, or any investment made or held by the Company, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such Person may hereafter be made party by reason of being or having been a manager of the Company under Delaware law, a director or an officer of the Company or any Subsidiary of the Company or the Manager, or an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan at the request of the Company. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified ~~Person,~~ Person pursuant to a loan guaranty or otherwise, for any indebtedness of the Company or any Subsidiary of the Company (including any indebtedness which the Company or any Subsidiary of the Company has assumed or taken subject to), and the Manager (and its officers) are hereby authorized and empowered, on behalf of the Company, to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 5.6 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a~~Section 5.6(a) that the Company shall not be required to indemnify ~~each~~ any Indemnified Person for any Expenses and Liabilities arising out of any acts or omissions of such Indemnified Person constituting fraud, gross negligence, willful misconduct or reckless disregard of his, her or its obligations and duties to the ~~fullest extent permitted by law~~Company. (b) The provisions of this Agreement, to the extent they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity, including ~~‎Section~~ this Section 5.6, are agreed by each Member to modify such duties and liabilities of the Indemnified Person to the extent permitted by law. (c) Any indemnification under this ~~‎Section 5.4~~ Section 5.6 (unless ordered by a court) shall be made by the Company unless the Manager determines in the specific case that indemnification of the Indemnified Person is not proper in the circumstances because such person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). Such determination shall be made in good faith by the Manager~~; provided that if the Manager or its Affiliates is the Indemnified Person, by a majority vote of the directors of the Sponsor who are not parties to the applicable suit, action or proceeding~~. To the extent, however, that an Indemnified Person has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person in connection therewith, notwithstanding an earlier determination by the Manager that the Indemnified Person had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). (d) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~5.6(c), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 5.6(a). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person is proper in the circumstances because such Indemnified Person has met the applicable standards of conduct set forth in ~~‎‎Section 5.4(a~~‎‎ Section 5.6(a). Neither a contrary determination in the specific case under ‎Section ~~5.4(c~~5.6(c) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 5.6(d) shall be given to the Company promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (e) To the fullest extent permitted by law, expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company as authorized in this ~~‎Section 5.4~~Section 5.6. (f) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 5.6 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this Agreement, or any other agreement, determination of the Manager, ~~vote of Members~~ or otherwise, and shall continue as to an Indemnified Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person is indemnified, it being the policy of the Company that indemnification of the persons specified in Section ~~5.4(a~~5.6(a) shall be made to the fullest extent permitted by law. The provisions of this Section ~~5.4~~ 5.6 shall not be deemed to preclude the indemnification of any person who is not specified in ‎Section ~~5.4(a~~5.6(a) but whom the Company has the power or obligation to indemnify under the provisions of the Delaware Act. (g) The Company may, but shall not be obligated to, purchase and maintain insurance on behalf of any Person entitled to indemnification under this Section ~~5.4~~ 5.6 against any liability asserted against such Person and incurred by such Person in any capacity to which they are entitled to indemnification hereunder, or arising out of such Person’s status as such, whether or not the Company would have the power or the obligation to indemnify such Person against such liability under the provisions of this Section ~~5.4~~5.6. (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 5.6 shall, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors and administrators of any person entitled to indemnification under this Section ~~5.4~~5.6. (i) The Company may, to the extent authorized from time to time by the Manager, provide rights to indemnification and to the advancement of expenses to employees and agents of the Company and to the employees and agents of any ~~Company Subsidiary or~~ Affiliate similar to those conferred in this ~~‎Section 5.4~~ Section 5.6 to Indemnified Persons. (j) If this ~~‎Section 5.4~~ Section 5.6 or any portion of this ~~‎Section 5.4~~ Section 5.6 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ~~‎Section 5.4~~ Section 5.6 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ~~‎Section 5.4~~ Section 5.6 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ~~‎Section 5.4~~Section 5.6, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ~~‎Section 5.4~~ Section 5.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section ~~5.4~~ 5.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.

Appears in 1 contract

Samples: Operating Agreement (Landa Financing LLC)

Exculpation, Indemnification, Advances and Insurance. ~~(a)~~ Subject to other applicable provisions of ~~this Article V~~Section 4.04, to the fullest extent permitted by applicable ~~law,~~ Law: (a) none of the ~~Indemnified Persons~~ Partners or their respective Affiliates shall ~~not be liable~~ have any liability to the ~~Company~~Partnership, any Subsidiary of the ~~Company~~Partnership, any ~~officer of the Company or a Subsidiary, or any Member~~ other Partner or any holder of ~~any~~ an equity interest in any Subsidiary of the ~~Company~~Partnership, for any ~~acts~~ act or ~~omissions by~~ omission, including any mistake of fact or error in judgment, taken, suffered or made; (b) an Officer of the Partnership shall have liability to the Partnership, any Subsidiary of the Partnership, any Partner or any holder of an equity interest in any Subsidiary of the Partnership, for any act or omission, including any mistake of fact or error in judgment, taken, suffered, or made only if such act or omission constitutes a breach of the duties of such Officer imposed pursuant to Section 3.04(f) and such breach is the result of (i) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Partnership or any of ~~the~~ its Subsidiaries or (ii) fraud; (c) all other Indemnified Persons shall have liability to the Partnership, any Subsidiary of the Partnership, any Partner or any holder of an equity interest in any Subsidiary of the Partnership, for any act or omission arising from (i) the ~~exercise of their rights or~~ performance of ~~their~~ such Indemnified Person’s duties and obligations in connection with the ~~Company~~Partnership, any Subsidiary of the Partnership, or pursuant to this Agreement or (ii) or in connection with any investment made or held by the ~~Company~~Partnership or any Subsidiary of the Partnership, including with respect to any ~~acts~~ act or ~~omissions~~ omission made while serving at the request of the ~~Company~~ Partnership as an officer, director, member, partner, tax matters partner, fiduciary or trustee of another Person or any employee benefit plan, including any mistake of fact or error in judgment, taken, suffered or made only if such act or omission constitutes a breach of the duties of such Indemnified Person and such breach is the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Partnership or any of its Subsidiaries or (B) fraud; and (a) an OCGH Indemnitee shall have liability to the Partnership, any Subsidiary of the Partnership, any Partner (other than OCGH) or any holder of an equity interest in any Subsidiary of the Partnership (other than OCGH), for any act or omission taken on behalf of the Partnership, any Subsidiary of the Partnership, AOH, OCG, any Oaktree Operating Group Member, or any Subsidiary of any Oaktree Operating Group Member only if such act or omission is the result of (i) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that had, or could reasonably be expected to have, a material and adverse effect on the business or properties of the Partnership or any of its Subsidiaries or (ii) fraud. The foregoing provisions of this Section 10.01 are intended and shall be interpreted as only limiting the liability of an Indemnified Person and not as in any way expanding such Person’s liability. For the avoidance of doubt, nothing contained in this Section 10.01 is intended to create any fiduciary duties for any Person. (b) The following Persons shall be indemnified by the ~~Company~~ Partnership, to the fullest extent permitted by ~~law~~Law, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the ~~Company~~ Partnership and counsel fees and ~~disbursements on a solicitor and client basis) (collectively, “Expenses and Liabilities”~~disbursements) arising from (i) with respect to the Indemnified Persons: (x) the performance of any of their respective duties or obligations in connection with their respective service to the ~~Company~~ Partnership, to any Subsidiary of the Partnership or pursuant to this Agreement, or (y) or in connection with any investment made or held by the ~~Company~~Partnership or any of its Subsidiaries, ~~including~~ or (ii) with respect to the OCGH Indemnitees: (x) authorized actions taken at the request and on the behalf of the Oaktree Business, or, provided that such OCGH Indemnitee was acting in good faith within the scope of such OCGH Indemnitee’s authority at the relevant time, actions for the benefit of the Oaktree Business (as opposed to internal matters between or among OCGH Indemnitees that are unrelated to the operations of the Oaktree Business) or (y) being a named defendant in an action (1) against AOH, OCG, any Oaktree Operating Group Member, or any Subsidiary of any Oaktree Operating Group Member, or (2) primarily related to the operations of the Oaktree Business, if, in the case of each of clauses (1) and (2), the applicable OCGH Indemnitee has been, in the determination of the Brookfield Member and the Oaktree Member (as defined in the AOH Operating Agreement), acting reasonably, wrongly named in such action, and including, in all such cases described in this Section 10.01(e), in connection with any civil, criminal, administrative, investigative or other action, suit or ~~proceeding~~ proceeding, whether by or in the right of the Partnership, to which any such Indemnified Person or OCGH Indemnitee may hereafter be made party by reason of being or having been an Indemnified Person or OCGH Indemnitee, except: (i) with respect to any Partner or Officer, to the extent that it shall have been determined in a ~~manager~~ final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the ~~Company under Delaware law~~duties of such Partner or Officer imposed pursuant to Section 3.04(f) and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a ~~director~~ material adverse effect on the business or ~~officer~~ properties of the ~~Company~~ Partnership or any of its Subsidiaries or (B) fraud; (ii) with respect to all Indemnified Persons (other than the Officers or the Partners and their respective Affiliates), to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions, including any mistake of fact or error in judgment, taken, suffered or made, that constituted a breach of the duties of such Indemnified Person and such breach was the result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Partnership or any of its Subsidiaries or (B) fraud; and (iii) with respect to the OCGH Indemnitees, to the extent that it shall have been determined in a final non-appealable judgment by a court or arbitral panel of competent jurisdiction that such expenses and liabilities arose primarily from acts or omissions taken on behalf of the Partnership or any Subsidiary of the ~~Company~~ Partnership and such act or omission is the ~~Manager~~result of (A) willful malfeasance, gross negligence, the commission of a felony or a material violation of applicable Law (including any federal or state securities Law), in each case, that has had, or ~~an officer~~could reasonably be expected to have, ~~director, member, partner, tax matters partner, fiduciary~~ a material and adverse effect on the business or ~~trustee~~ properties of ~~another Person~~ the Partnership or any ~~employee benefit plan at the request~~ of ~~the Company~~its Subsidiaries or (B) fraud. Without limitation, the foregoing indemnity shall extend to any liability of any Indemnified Person, pursuant to a ~~loan~~ loan, guaranty or otherwise, for any indebtedness of the ~~Company~~ Partnership or any Subsidiary of the ~~Company~~ Partnership (including any indebtedness which the ~~Company~~ Partnership or any Subsidiary of the ~~Company~~ Partnership has assumed or taken subject to), and the ~~Manager (and its officers) are~~ Partnership or any Subsidiary is hereby authorized and ~~empowered, on behalf of the Company,~~ empowered to enter into one or more indemnity agreements consistent with the provisions of this ~~‎Section 5.4~~ Section 10.01 in favor of any Indemnified Person having or potentially having liability for any such indebtedness. It is the intention of this ~~‎Section 5.4(a)~~ Section 10.01 that the ~~Company~~ Partnership indemnify each Indemnified Person or OCGH Indemnitee, as applicable, to the fullest extent permitted by ~~law~~Law except as specifically provided in this Section 10.01. (bc) The termination of any action, suit or proceeding relating to or involving an Indemnified Person or OCGH Indemnitee by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person or OCGH Indemnitee breached any duty or committed (i) willful malfeasance, gross negligence, a felony or a material violation of applicable Law (including any federal or state securities Law) that has resulted in, or could reasonably be expected to result in, a material adverse effect on the business or properties of the Partnership or any of its Subsidiaries or (ii) fraud. (d) The provisions of this Agreement, to the extent they ~~restrict~~ limit or eliminate the duties and liabilities of an Indemnified Person or OCGH Indemnitee otherwise existing at law or in equity, including ~~‎Section 5.6~~Sections 3.04(f) and Section 3.04(g), are agreed by each ~~Member~~ Partner to modify such duties and liabilities of ~~the~~ such Indemnified Person or OCGH Indemnitee to the extent permitted by ~~law~~Law. (ce) Any indemnification under this ~~‎Section 5.4~~ Section 10.01 (unless ordered by a ~~court~~court or arbitral panel of competent jurisdiction) shall be made by the ~~Company~~ Partnership unless the ~~Manager determines~~ Partners determine in the specific case that indemnification of the Indemnified Person or OCGH Indemnitee is not proper in the circumstances because such ~~person~~ Person has not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 10.01(e). Such determination shall be made ~~in good faith by the Manager; provided that if the Manager or its Affiliates is the Indemnified Person,~~ by a majority vote of the ~~directors of the Sponsor~~ Partners who are not parties to the applicable suit, action or proceeding. To the extent, however, that an Indemnified Person or OCGH Indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such Indemnified Person or OCGH Indemnitee shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnified Person or OCGH Indemnitee in connection therewith, notwithstanding an earlier determination by the ~~Manager~~ Partners that the Indemnified Person or OCGH Indemnitee had not met the applicable standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 10.01(e). (df) Notwithstanding any contrary determination in the specific case under Section ~~5.4(c~~10.01(h), and notwithstanding the absence of any determination thereunder, any Indemnified Person may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under ~~‎‎Section 5.4(a~~Section 10.01(e). The basis of such indemnification by a court shall be a determination by such court that indemnification of the Indemnified Person or OCGH Indemnitee is proper in the circumstances because such Indemnified Person or OCGH Indemnitee has met the applicable ~~standards~~ standard of conduct set forth in ~~‎‎Section 5.4(a~~Section 10.01(e). Neither a contrary determination in the specific case under ~~‎Section 5.4(c~~Section 10.01(h) nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the Indemnified Person or OCGH Indemnitee seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this ~~‎Section 5.4(d~~Section 10.01(i) shall be given to the ~~Company~~ Partnership promptly upon the filing of such application. If successful, in whole or in part, the Indemnified Person or OCGH Indemnitee seeking indemnification shall also be entitled to be paid the expense of prosecuting such application. (eg) To the fullest extent permitted by ~~law~~Law, expenses (including attorneys’ fees) actually and reasonably incurred by an Indemnified Person or OCGH Indemnitee in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the ~~Company~~ Partnership in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnified Person or OCGH Indemnitee to repay such amount if it shall ultimately be determined that such Indemnified Person or OCGH Indemnitee is not entitled to be indemnified by the ~~Company~~ Partnership as authorized in this ~~‎Section 5.4~~Section 10.01. (fh) The indemnification and advancement of expenses provided by or granted pursuant to this ~~‎Section 5.4~~ Section 10.01 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under this ~~Agreement,~~ Agreement or any other agreement, ~~determination of the Manager,~~ vote of ~~Members~~ Partners or otherwise, and shall continue as to an Indemnified Person or OCGH Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnified Person or OCGH Indemnitee unless otherwise provided in a written agreement with such Indemnified Person or in the writing pursuant to which such Indemnified Person or OCGH Indemnitee is indemnified~~, it being the policy of the Company that indemnification of the persons specified in Section 5.4(a) shall be made to the fullest extent permitted by law~~. The provisions of this Section ~~5.4~~ 10.01 shall not be deemed to preclude the indemnification of any ~~person~~ Person who is not specified in ~~‎Section 5.4(a~~Section 10.01(e) but whom the ~~Company~~ Partnership has the power or obligation to indemnify under the provisions of the ~~Delaware~~ Act. (gi) The ~~Company~~ Partnership may, but shall not be obligated to, purchase and maintain insurance on behalf of any Indemnified Person ~~entitled to indemnification under this Section 5.4~~ or OCGH Indemnitee against any liability asserted against such Indemnified Person or OCGH Indemnitee and incurred by such Indemnified Person in any capacity to in which ~~they are~~ such Indemnified Person or OCGH Indemnitee is entitled to indemnification hereunder, or arising out of such Indemnified Person’s or OCGH Indemnitee’s status as such, whether or not the ~~Company~~ Partnership would have the power or the obligation to indemnify such Indemnified Person or OCGH Indemnitee against such liability under the provisions of this Section ~~5.4~~10.01. (hj) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section ~~5.4~~ 10.01 shall, unless otherwise provided when authorized or ratified, ~~shall~~ inure to the benefit of the heirs, executors and administrators of any ~~person~~ Person entitled to indemnification under this Section ~~5.4~~10.01. (ik) The ~~Company~~ Partnership may, to the extent authorized from time to time by the ~~Manager~~Partners, provide rights to indemnification and to the advancement of expenses to employees and agents of the ~~Company~~ Partnership and to the employees and agents of ~~any Company Subsidiary or Affiliate~~ the Partnership similar to those conferred in this ‎Section 5.4 to Indemnified Persons (j) If this ‎Section 5.4 or any portion of this ‎Section 5.4 shall be invalidated on any ground by a court of competent jurisdiction the Company shall nevertheless indemnify each Indemnified Person as to expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement with respect to any action, suit, proceeding or investigation, whether civil, criminal or administrative, including a grand jury proceeding or action or suit brought by or in the right of the Company, to the full extent permitted by any applicable portion of this ‎Section 5.4 that shall not have been invalidated. (k) Each of the Indemnified Persons may, in the performance of his, her or its duties, consult with legal counsel and accountants, and any act or omission by such Person on behalf of the Company in furtherance of the interests of the Company in good faith in reliance upon, and in accordance with, the advice of such legal counsel or accountants will be full justification for any such act or omission, and such Person will be fully protected for such acts and omissions; provided that such legal counsel or accountants were selected with reasonable care by or on behalf of the Company. (l) An Indemnified Person shall not be denied indemnification in whole or in part under this ‎Section 5.4 because the Indemnified Person had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (m) Any liabilities which an Indemnified Person incurs as a result of acting on behalf of the Company (whether as a fiduciary or otherwise) in connection with the operation, administration or maintenance of an employee benefit plan or any related trust or funding mechanism (whether such liabilities are in the form of excise taxes assessed by the Internal Revenue Service, penalties assessed by the Department of Labor, restitutions to such a plan or trust or other funding mechanism or to a participant or beneficiary of such plan, trust or other funding mechanism, or otherwise) shall be treated as liabilities indemnifiable under this ‎Section 5.4, to the maximum extent permitted by law. (n) The directors and officers of the Manager shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Company and on such information, opinions, reports or statements presented to the Company by any of the officers or employees of the Company or the Manager or by any other Person as to matters the director or officer of the Manager reasonably believes are within such other Person’s professional or expert competence. (o) Any amendment, modification or repeal of this ‎Section 5.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of or other rights of any Indemnified Person under this Section 5.4 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted and provided such Person became an Indemnified Person hereunder prior to such amendment, modification or repeal.10.01

Appears in 1 contract

Samples: Limited Partnership Agreement (Oaktree Capital Group, LLC)

Common use of Exculpation, Indemnification, Advances and Insurance Clause in Contracts