Common use of LIABILITIES OF MANAGER; INDEMNIFICATION Clause in Contracts

LIABILITIES OF MANAGER; INDEMNIFICATION. (a) The Manager shall not be liable for the return of all or any part of the Capital Contributions of the Members. Any returns shall be made solely from the assets of the Company according to the terms of this Agreement. (b) Notwithstanding anything to the contrary set forth in this Agreement, none of the Manager or Ashford Inc. nor any of their officers, directors, agents or employees shall be liable or accountable in damages or otherwise to the Company, any Members or any assignees who are bound by this Agreement, or any of their successors or assigns, for any losses sustained, liabilities incurred or benefits not derived, as a result of errors in judgment or mistakes of fact or law or any act or omission if the Manager, Ashford Inc., or such officers, directors, agents or employees acted in good faith. The Manager shall not be responsible for any misconduct or negligence on the part on any agent appointed by it in good faith pursuant to Section 6.2. The Members expressly acknowledge that the Manager is acting on behalf of the Company, the Manager, and Ashford Inc.’s stockholders collectively, and that the Manager is under no obligation to consider the separate interests of the Members (including, without limitation, the tax consequences to Members or their assignees) in deciding whether to cause the Company to take (or decline to take) any actions. In the event of a conflict between the interests of the stockholders of Ashford Inc. on one hand and the Members on the other, the Manager shall endeavor in good faith to resolve the conflict in a manner not adverse to either the stockholders of Ashford Inc. or the Members; provided, however, that, notwithstanding any duty otherwise existing at law or in equity, to the fullest extent permitted by law, for so long as Ashford Inc. owns a controlling interest, directly or indirectly, in the Company, any such conflict that cannot be resolved in a manner not adverse to either the stockholders of Ashford Inc. or the Members shall be resolved in favor of the stockholders of Ashford Inc. Subject to the implied contractual covenant of good faith and fair dealing, the Manager shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Members in connection with such decisions, provided that the Manager has acted in good faith. (c) The Company shall indemnify each Indemnitee to the fullest extent permitted by law and save and hold it harmless from and against, and in respect of, any and all losses, claims, damages, liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Company in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise; provided, however, that this indemnification shall not apply if: (A) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (B) the Indemnitee actually received an improper personal benefit in money, property or services; or (C) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 6.4(c). The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that specified in this Section 6.4(c). Any indemnification pursuant to this Section 6.4 shall be made only out of the assets of the Company, and any insurance proceeds from the liability policy covering the Manager and any Indemnitee. (d) The Company shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Company of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized in this Section 6.4 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met. (e) The indemnification provided by this Section 6.4 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity. (f) The Company may purchase and maintain insurance on behalf of the Indemnitees, and such other Persons as the Manager shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Company’s activities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. (g) For purposes of this Section 6.4, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by the Indemnitee of its duties to the Company also imposes duties on, or otherwise involves services by, the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.4; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by the Indemnitee to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company. (h) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement. (i) An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.4 because the Indemnitee 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. (j) Any amendment, modification or repeal of this Section 6.4 or any provision of this Section 6.4 shall be prospective only and shall not in any way affect the limitations on the Manager’s liability to the Company and the Members under this Section 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted. The provisions of this Section 6.4 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.

LIABILITIES OF MANAGER; INDEMNIFICATION. (a) The Manager shall not be liable for the return of all or any part of the Capital Contributions of the Members. Any returns shall be made solely from the assets of the Company according to the terms of this Agreement. (b) Notwithstanding anything to the contrary set forth in this Agreement, none of the Ashford Inc., Ashford OAINC II Inc. or Ashford OAINC Inc. (in its capacity as Manager or Ashford Inc. nor any otherwise), and none of their respective officers, directors, agents or employees shall be liable or accountable in damages or otherwise to the Company, any Members or any assignees who are bound by this Agreement, or any of their successors or assigns, for any losses sustained, liabilities incurred or benefits not derived, as a result of errors in judgment or mistakes of fact or law or any act or omission if the ManagerAshford Inc., Ashford OAINC II Inc., Ashford OAINC Inc. (in its capacity as Manager or otherwise), or such officers, directors, agents or employees acted in good faith. The Manager shall not be responsible for any misconduct or negligence on the part on any agent appointed by it in good faith pursuant to Section 6.2. The Members expressly acknowledge that the Manager is acting on behalf of the Company, the ManagerAshford OAINC Inc. (in its capacity as Manager and otherwise), Ashford OAINC II Inc. and Ashford Inc.’s stockholders collectively, and that the Manager is under no obligation to consider the separate interests of the Members (including, without limitation, the tax consequences to Members or their assignees) in deciding whether to cause the Company to take (or decline to take) any actions. In the event of a conflict between the interests of the stockholders of Ashford Inc. on one hand and the Members on the other, the Manager shall endeavor in good faith to resolve the conflict in a manner not adverse to either the stockholders of Ashford Inc. or the Members; provided, however, that, notwithstanding any duty otherwise existing at law or in equity, to the fullest extent permitted by law, for so long as Ashford Inc. owns a controlling interest, directly or indirectly, in the Company, any such conflict that cannot be resolved in a manner not adverse to either the stockholders of Ashford Inc. or the Members shall be resolved in favor of the stockholders of Ashford Inc. Subject to the implied contractual covenant of good faith and fair dealing, the Manager shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Members in connection with such decisions, provided that the Manager has acted in good faith. (c) The Company shall indemnify each Indemnitee to the fullest extent permitted by law and save and hold it harmless from and against, and in respect of, any and all losses, claims, damages, liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Company in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise; provided, however, that this indemnification shall not apply if: (A) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (B) the Indemnitee actually received an improper personal benefit in money, property or services; or (C) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 6.4(c). The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that specified in this Section 6.4(c). Any indemnification pursuant to this Section 6.4 shall be made only out of the assets of the Company, and any insurance proceeds from the liability policy covering the Manager Manager, Ashford Inc., Ashford OAINC II Inc. and any Indemnitee. (d) The Company shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Company of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Company as authorized in this Section 6.4 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met. (e) The indemnification provided by this Section 6.4 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Members, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity. (f) The Company may purchase and maintain insurance on behalf of the Indemnitees, and such other Persons as the Manager shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Company’s activities, regardless of whether the Company would have the power to indemnify such Person against such liability under the provisions of this Agreement. (g) For purposes of this Section 6.4, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by the Indemnitee of its duties to the Company also imposes duties on, or otherwise involves services by, the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.4; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by the Indemnitee to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Company. (h) In no event may an Indemnitee subject the Members to personal liability by reason of the indemnification provisions set forth in this Agreement. (i) An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.4 because the Indemnitee 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. (j) Any amendment, modification or repeal of this Section 6.4 or any provision of this Section 6.4 shall be prospective only and shall not in any way affect the limitations on the Manager’s liability to the Company and the Members under this Section 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted. The provisions of this Section 6.4 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons.