Liability for Acts and Omissions. (a) Except as described in Sections 6.08(b), neither the Manager, nor any Member, nor any member of the Investment Committee shall have any liability, responsibility or accountability in damages or otherwise to any other Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the Manager, the Members and each member of the Investment Committee from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of defense, appeal and settlement of any and all suits, actions, or proceedings instituted against the Manager or the Company and each member of the Investment Committee), and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Manager, the Members, any member of the Investment Committee or the Company in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the Manager as the manager of the Company, or on the part of the Members or any member of the Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests of the Company. (b) The Manager, the Members or any member of the Investment Committee, as the case may be, shall be liable, responsible and accountable for and shall indemnify and hold the Company harmless against, and the Company shall not be liable to, and shall not be obligated to indemnify, such Person for any portion of, such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements which resulted from such Person's own fraud, gross negligence, willful misconduct, recklessness, bad faith, illegal acts, material breach of this Agreement or other breach of fiduciary duty (if any) to the Company or any Member (including an act not first determined by such Person, in good faith, to be in the best interests of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other hand; provided, however, that any such opinion shall be evidence of good faith. (c) In any action, suit or proceeding against the Company, the Manager, the Members or any member of the Investment Committee relating to or arising, or alleged to relate or arise, out of any such action or non-action, the Manager, the Members and any member of the Investment Committee shall have the right to jointly employ, at the expense of the Company, separate counsel of the Manager's, Member’s or investment committee member's choice in such action, suit or proceeding; provided, however, that if retention of joint counsel by such indemnified persons would create a conflict of interest, each group of indemnified persons which would not cause such a conflict shall have the right to employ separate counsel at the expense of the Company; provided further that such counsel is acceptable to the Manager. (d) The satisfaction of the obligations of the Company under this Section 6.08 shall be from and limited to the assets of the Company (excluding the unfunded Commitments of the Members) and no Member shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (g) The provision of advances from Company funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Indemnitee in the performance of its duties or provision of its services on behalf of the Company; and (ii) the Indemnitee undertakes to repay any funds advanced pursuant to this Section 6.08 in cases in which such Indemnitee would not be entitled to indemnification under this Section 6.08. Notwithstanding the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails in such legal action or proceeding. If advances are permissible under this Section, the Indemnitee shall furnish the Company with an undertaking as set forth above and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such Indemnitee shall be obligated to make payment therefor, any and all amounts for which such Indemnitee believes in good faith that such Indemnitee is entitled to indemnification under this Section 6.08. The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the Manager and the Company's rights to repayment of such amounts shall be secured by the Indemnitee's Interest, if any, or by such other adequate security as the Manager may determine. If a determination is made by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company, that the Company is not obligated in respect of any amount paid by it to a particular Indemnitee, such Indemnitee shall refund such amount within 60 days of such determination, and if a determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular Indemnitee, the Company will pay such amount to such Indemnitee within 60 days of such determination. (h) If indemnification is sought by any Indemnitee pursuant to this Agreement and such indemnification relates to a settlement or to a claim which is not successfully defended by the Indemnitee seeking indemnification, the Company shall not make any payment pursuant to this Section to such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that the indemnification standard set forth above has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company. (i) The Manager may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law or otherwise, and shall continue as to any Indemnitee after such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 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 be asserted.

Appears in 2 contracts

Samples: Limited Liability Company Agreement, Limited Liability Company Agreement

Liability for Acts and Omissions. (aA) ~~Except as described in Sections 6.08(b~~No Manager or Officer of the Company, and no Member, or any officers, directors, employees and agents of any Member (together, the “Indemnified Parties”), ~~neither the Manager~~shall be liable, ~~nor any Member, nor any member of the Investment Committee shall have any liability, responsibility~~ responsible or ~~accountability~~ accountable in damages or otherwise to ~~any other Member or~~ the Company ~~for, and the Company agrees to indemnify, pay, protect and hold harmless the Manager, the Members and each member of the Investment Committee from and against,~~ or any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of defense, appeal and settlement of any and all suits, actions, or proceedings instituted against the Manager or the Company and each member of the Investment Committee), and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Manager, the Members, any member of the Investment Committee or the Company in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the Manager as the manager of the Company, or on the part of the Members for any act or ~~any member~~ omission performed or omitted in good faith on behalf of the ~~Investment Committee in its capacity as such. No settlement of~~ Company which any ~~such suits shall~~ Indemnified Party reasonably believed to be ~~permitted unless~~ within the ~~Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate~~ scope of the ~~Manager~~ authority granted by this Agreement and ~~shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is~~ in the best interests of the Company~~. (b)~~ , provided that such act or omission is in good faith and with such care as an ordinarily prudent person in a like position would use under similar circumstances. The ~~Manager, the Members or any member of the Investment Committee, as the case may be,~~ Indemnified Parties shall nevertheless be liable, responsible ~~and~~ or accountable for and shall indemnify and hold the Company harmless against, and the Company shall not be liable to, and shall not be obligated to indemnify, such Person for any portion of, such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements which resulted from such Person's own actual fraud, gross ~~negligence, willful~~ negligence or intentional misconduct, recklessness, bad faith, illegal acts, material breach of this Agreement or other breach of fiduciary duty (if any) to the Company or any Member (including an act not first determined by such Person, in good faith, to be in the best interests of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other hand; provided, however, that any such opinion shall be evidence of good faith. (cB) ~~In any action, suit or proceeding against the Company, the Manager, the Members or any member of the Investment Committee relating~~ Subject to or arising, or alleged to relate or arise, out of any such action or non-action, the Manager, the Members and any member of the Investment Committee shall have the right to jointly employ, at the expense of the Company, separate counsel of the Manager's, Member’s or investment committee member's choice in such action, suit or proceeding; provided, however, that if retention of joint counsel by such indemnified persons would create a conflict of interest, each group of indemnified persons which would not cause such a conflict shall have the right to employ separate counsel at the expense of the Company; provided further that such counsel is acceptable to the Manager. (dSection 7.07(D) The satisfaction of the obligations of the Company under this Section 6.08 shall be from and limited to the assets of the Company (excluding the unfunded Commitments of the Members) and no Member shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitmentbelow, the Company shall ~~furnish indemnification~~ indemnify and make advances for expenses to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein Indemnified Parties to the ~~contrary notwithstanding~~fullest extent permitted under the Act (to the extent of available assets, but without the ~~Indemnitees shall not be indemnified~~ requirement that any Member make additional Capital Contributions or Member Loans for this purpose) against any loss or damage incurred by ~~them~~ the Indemnified Parties by reason of any act or omission performed or omitted by any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager Indemnified Party which is consistent with the ~~concurrence~~ first sentence of Section 7.07(A) above. To the ~~Investment Committee reasonably believes that such settlement shall be in~~ extent the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer liquid assets of the Company are insufficient to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (g) The provision of advances from Company funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Indemnitee in the performance of its duties or provision of its services on behalf of the Company; and (ii) the Indemnitee undertakes to repay any funds advanced pursuant to this Section 6.08 in cases in which such Indemnitee would not be entitled to indemnification under this Section 6.08. Notwithstanding the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails in such legal action or proceeding. If advances are permissible under this Section, the Indemnitee shall furnish the Company with an undertaking as set forth above and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such Indemnitee shall be obligated to make payment therefor, any and all amounts for which such Indemnitee believes in good faith that such Indemnitee is entitled to indemnification under this Section 6.08. The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the Manager and the Company's rights to repayment of such amounts shall be secured by the Indemnitee's Interest, if any, or by such other adequate security as the Manager may determine. If a determination is made by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company, that the Company is not obligated in respect of any amount paid by it to a particular Indemnitee, such Indemnitee shall refund such amount within 60 days of such determination, and if a determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular Indemnitee, the Company will pay such amount to such Indemnitee within 60 days of such determination. (h) If indemnification is sought by any Indemnitee pursuant to this Agreement and such indemnification relates to a settlement or to a claim which is not successfully defended by the Indemnitee seeking indemnification, the Company shall not make any payment pursuant to this Section to such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that satisfy the indemnification standard set forth above has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company. (i) The Manager may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law or otherwise, and shall continue as to any Indemnitee after such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company or the obligation of the Company to ~~indemnify~~ any ~~such Indemnitee~~ Member under ~~and in accordance with the provisions of~~ this Section ~~6.08~~ 7.07(B) at the time such Member incurs any loss or damage described in this Section 7.07(B) (the “Shortfall”), such Member shall be treated as having made a loan to the Company in ~~effect immediately~~ the amount of the Shortfall (which loan shall be repaid, with interest at the rate equal to the lower of (x) twenty-five percent (25%) per annum or (y) the highest annual interest rate permitted under applicable law, until paid, prior to the distribution of Cash Available for Distribution under Section 6.02.) (C) Each Member shall indemnify and hold harmless the Company, the other Members and their respective Affiliates against any damage or loss incurred by the Company and/or such ~~amendment~~Members and/or their respective Affiliates by reason of such Member’s fraud, ~~modification~~ gross negligence or ~~repeal~~ intentional misconduct with respect to ~~claims arising from or relating~~ the Company and/or any Company Property. In addition, concurrently with the execution of this Agreement, each Member shall cause its Member Parent to ~~matters occurring~~deliver to each other Member and to the Company a written agreement, substantially in ~~whole or~~ the form attached as Exhibit 7 hereto, whereby such Member Parent agrees to the indemnification obligations set forth in ~~part, prior~~ this Section 7.07(C) with respect to ~~such amendment, modification or repeal, regardless~~ the applicable Member. (D) Each Member acknowledges that the assets of ~~when such claims may~~ the Company available to satisfy the indemnity of the Company set forth in Section 7.07(B) shall be ~~asserted~~limited to the Company Property.

Appears in 1 contract

Samples: Limited Liability Company Agreement (Thermoenergy Corp)

Liability for Acts and Omissions. Recourse to Reckson ----------------------------------------------------- Services and to ROP Line. ------------------------ (aA) ~~Except as described in Sections 6.08(b), neither~~ None of the ~~Manager, nor any~~ Managing Member, ~~nor~~ PWRES, any member of the ~~Investment~~ Advisory Committee or any of their respective Affiliates, members, shareholders, partners, officers, directors, employees, agents and representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the ~~Manager~~Managing Member, ~~the Members and~~ PWRES, each member of the ~~Investment~~ Advisory Committee and their respective Affiliates, shareholders, partners, officers, directors, employees, agents and representatives (each, an "INDEMNIFIED PARTY" and collectively, the "INDEMNIFIED PARTIES") from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, ~~actions,~~ actions or proceedings instituted or threatened against the ~~Manager~~ Indemnified Parties or the ~~Company and each member of the Investment Committee),~~ Company) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the ~~Manager, the Members, any member of the Investment Committee~~ Indemnified Parties or the Company in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the ~~Manager as the manager~~ Indemnified Parties when acting on behalf of the ~~Company,~~ Company or on the part of ~~the Members~~ any brokers or any member of the Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests agents when acting on behalf of the Company~~. (b) The Manager~~; provided, ~~the Members or any member of the Investment Committee, as the case may be,~~ that Reckson Services and -------- Managing Member shall be jointly and severally liable, responsible and accountable ~~for~~ for, and shall indemnify and hold the Company and the Non- Managing Members harmless against, and the Company shall not be liable toto Managing Member, ~~and shall not be obligated to indemnify~~Reckson Services or any of their respective Affiliates for, ~~such Person for~~ any portion ~~of,~~ of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements or any costs, of investigation in connection therewith which ~~resulted from such Person's own~~ result from, the fraud, ~~gross negligence~~willful misconduct or bad faith of Managing Member, ~~willful misconduct, recklessness, bad faith, illegal acts, material breach of this Agreement or other breach of fiduciary duty (if any) to the Company~~ Reckson Services or any ~~Member (including an act not first determined by such Person, in good faith, to be in the best interests~~ of ~~the Company)~~their respective Affiliates. An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other hand; provided, however, that any such opinion shall be evidence of good faith. (c) In any action, suit or proceeding against the ~~Company, the Manager, the Members~~ Company or any ~~member of the Investment Committee~~ Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-~~action~~action (other than Managing Members', Reckson Services' or any of their respective Affiliates' fraud, willful misconduct or bad faith), the ~~Manager, the Members and any member of the Investment Committee~~ Indemnified Parties shall have the right to jointly employ, at the expense of the Company, ~~separate counsel~~ of the ~~Manager's~~Indemnified Parties' choice, ~~Member’s or investment committee member's choice~~ which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceeding~~; provided~~, ~~however,~~ provided that if retention of joint counsel by ~~such indemnified persons~~ the Indemnified Parties would create a conflict of interest, each group of ~~indemnified persons~~ Indemnified Parties which would not cause such a conflict shall have the right to ~~employ separate counsel~~ employ, at the expense of the Company~~; provided further that such~~ , separate counsel ~~is acceptable~~ of the Indemnified Party's choice, which counsel shall be reasonably satisfactory to the ~~Manager. (d)~~ Company, in such action, suit or proceeding. The satisfaction of the obligations of the Company under this Section ~~6.08~~ 7.05(A) --------------- shall be from and limited to the assets of the Company (~~excluding the unfunded Commitments of the Members~~which, for purposes hereof, shall be deemed not to include Remaining Capital Commitments) and no Non-Managing Member shall have any personal liability on account thereof. For purposes of this Section 7.05(A), Reckson and its Affiliates shall be deemed --------------- to be deemed to be Affiliates of Reckson Services until such time as less than a majority of the directors of the board of directors of Reckson Services are also officers or directors of Reckson. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (g) The provision of advances from Company funds to an ~~Indemnitee~~ Indemnified Party for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the ~~Indemnitee~~ Indemnified Party in the performance of its duties or provision of its services on behalf of the Company; and (ii) the ~~Indemnitee~~ Indemnified Party undertakes to repay any funds advanced pursuant to this Section ~~6.08~~ 7.05(B) in cases in which such ~~Indemnitee~~ Indemnified Party would not be --------------- entitled to indemnification under ~~this~~ Section ~~6.08. Notwithstanding~~ 7.05(A) and, if required by the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails --------------- Advisory committees provides security in such ~~legal action or proceeding~~a undertaking satisfactory to the Advisory committee, and (iii) the Company has sufficient available funds on hand for such advances. If advances are permissible under this ~~Section~~Section ------- 7.05(B), the ~~Indemnitee~~ Indemnified Party shall furnish the Company with an ~~undertaking~~ undertaking, ------- and, if required, security as set forth ~~above~~ in clause (ii) of this paragraph and shall thereafter have the right to ~~xxxx~~ bill the Company for, or otherwise request the Company to pay, at xx any time and from time to time after such ~~Indemnitee~~ Indemnified Party shall be become obligated to make payment therefor, any and all reasonable amounts for which such ~~Indemnitee~~ Indemnified Party believes in good faith that such ~~Indemnitee~~ Indemnified Party is entitled to indemnification under ~~this~~ Section ~~6.08~~7.05(A) with --------------- the approval of the Advisory Committee. The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such ~~xxxx~~ bill or request is received by the ~~Manager and~~ Managing Member. In the ~~Company's rights to repayment of such amounts shall be secured by the Indemnitee's Interest, if any, or by such other adequate security as the Manager may determine. If~~ evxxx that a final determination is made ~~by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company,~~ that the Company is not so obligated in respect of any amount paid by it to a particular ~~Indemnitee~~Indemnified Party, such ~~Indemnitee shall~~ Indemnified Party will refund such amount within 60 days of such final determination, and if in the event that a final determination is made that the Company is so obligated in respect to of any amount ~~not paid by the Company to a particular Indemnitee~~Indemnified Party, the Company will pay such amount to such ~~Indemnitee~~ Indemnified Party within 60 days of such final determination, in either case together with interest at the Prime Rate plus 2% from the date paid by such Indemnified Party until actually repaid to such Indemnified Party or the date such amount was obligated to be paid to such Indemnified Party until the date actually paid to such Indemnified Party. (hC) ~~If indemnification is sought~~ All judgments against the Company or any Indemnified Party wherein such persons or entities are entitled to indemnification, must first be satisfied from the Company assets (other than Remaining Capital commitments). (D) Except as may be otherwise provided herein, in no event shall any Member, or any Affiliate of a Member, or any partner, director, officer, employee, agent, member or shareholder of a Member or any Affiliate of a Member, be liable for the obligations of the Company, whether for the consummation of Investments, professional and other services rendered to it, loans made to it by Members or others, injuries to persons or property, indemnity to the Indemnified Parties, contractual obligations, guaranties, endorsements or for other reasons similar or dissimilar to any ~~Indemnitee pursuant~~ of the foregoing, and without regard to ~~this Agreement and such indemnification relates to a settlement or to a claim~~ the manner in which ~~is not successfully defended~~ any liability of any nature may be incurred by the ~~Indemnitee seeking indemnification~~person to whom it may be owed it being understood that, all such liabilities shall be liabilities of the Company as an entity, and shall be paid or otherwise satisfied from the Company assets as are necessary to satisfy such liabilities. (E) The Managing Member may cause the Company, at the Company's expense, to purchase insurance to insure the Indemnified Parties against liability hereunder, including, without limitation, for a breach or an alleged breach of their responsibilities hereunder. The Managing Member shall send Notice to the Non- Managing Members thereof, describing the insurance policy and the premiums paid therefor promptly upon the purchase of such insurance. The Company shall not ~~make~~ incur the costs of that portion of any ~~payment pursuant~~ insurance, other than public liability insurance, which insures any Indemnified Party for any liability as to which such person is prohibited from being indemnified under Section ------- 7.05(A). ------- (F) As a material inducement to PWRES to enter into this Agreement, Reckson Services hereby agrees (i) to use best efforts to enter into all documentation with Reckson Operating Partnership necessary to effectuate the ROP Line, and shall deliver to PWRES true and complete copies of all such documentation, as soon as practicable following the date of this Agreement; (ii) that such documentation (a) shall permit proceeds of advances under the ROP Line to be used to fund any indemnification obligations of Reckson Services or Managing Member under this Section 7.05; (b) shall not ------------ require, as a condition to any such ~~Indemnitee unless those members~~ advance, that there be no material adverse change (or similar provision) with respect to Reckson Services, Managing Member or the Company (but such advance may be subject to other types of customary conditions to funding of a loan and may also be subject to the preservation of the ~~Investment Committee who are neither Indemnitees seeking indemnification nor affiliated~~ lender's status as a real estate investment trust); and (c) shall provide in substance that all rights of Reckson Operating Partnership in respect of advances under the ROP Line shall be subordinated, on terms and conditions satisfactory to PWRES, to any claims of the Company and the Non-Managing Members against Reckson Services and Managing Member under this Section 7.05; (iii) in connection with any claim ------------ by the ~~Manager~~ Company or ~~any such Indemnitee shall have determined that~~ the Class A Members against Managing Member and/or Reckson Services under the indemnification ~~standard~~ set forth ~~above has been met~~ in this Section 7.05, Reckson ------------ Services shall, promptly after receipt of a written request from a Class A Member, request an advance under the ROP Line to fund the total amount of any reasonably expected liabilities of the Managing Member and/or Reckson Services in connection with such claim, as reasonably determined by such ~~Indemnitee;~~ Class A Member provided, however, that ~~if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve,~~ such ~~determination shall~~ funds need not be ~~made~~ actually -------- ------- advanced by ~~independent legal counsel retained~~ Reckson Operating Partnership until such claim has been determined by the Investment Committee on behalf of the Company. (i) The Manager may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law final judgment or otherwise, ~~and shall continue as to any Indemnitee after such Indemnitee has ceased to have~~ it being understood that the ~~status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit~~ amount of the ~~heirs, successors, assigns and administrators of~~ advance covered by such request by Reckson Services for such an advance on the ~~Indemnitee, but~~ ROP Line shall not be ~~deemed~~ eligible for use for any other purpose until such claim has been finally determined, and then only such portion of such advance as shall not be required to ~~create~~ satisfy such claim shall be eligible for use for other purposes; (iv) Reckson Services shall not pay any ~~rights~~ dividend to its shareholders that would cause its total paid-in equity capital to be reduced to less than the lesser of (a) the Minimum Book Capitalization, or (b) the amount of its paid-in equity capital immediately following the first issuance of common stock of Reckson Services (up to a maximum of $15 million) occurring after the spin-off of the shares of Reckson Services to the shareholders of Reckson; and (v) Reckson Services shall give the Class A Members prompt Notice of any principal repayment under the ROP Line or dividends paid from Capital Event Proceeds, and if the Class A Member reasonably believes that the Book Capitalization of Reckson Services would be less than the Minimum Book Capitalization upon such principal repayment, then the Class A Member shall not thereafter be required to make any Capital Contribution (other than solely for the ~~benefit~~ purpose of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified funding a capital contribution by the Company or to a Co-Investment Vehicle) until the ~~obligation~~ Class A Member shall have received evidence reasonably satisfactory to the Class A Member that the Book Capitalization of Reckson Services would be at least equal to the ~~Company to indemnify any~~ Minimum Book Capitalization upon such Indemnitee under and in accordance with the provisions of this Section 6.08 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 be assertedprincipal repayment.

Appears in 1 contract

Samples: Operating Agreement (Reckson Services Industries Inc)

Liability for Acts and Omissions. (a) Except as described in Sections 6.08(b), neither the Manager, nor any Member, nor any member of the Investment Committee shall have any liability, responsibility or accountability in damages or otherwise to any other Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the Manager, the Members and each member of the Investment Committee from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of defense, appeal and settlement of any and all suits, actions, or proceedings instituted against the Manager or the Company and each member of the Investment Committee), and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the Manager, the Members, any member of the Investment Committee or the Company in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the Manager as the manager of the Company, or on the part of ~~the~~ suchthe Members or any member of the Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests of the Company. (b) The Manager, the Members or any member of the Investment Committee, as the case may be, shall be liable, responsible and accountable for and shall indemnify and hold the Company harmless against, and the Company shall not be liable to, and shall not be obligated to indemnify, such Person for any portion of, such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements which resulted from such Person's own fraud, gross negligence, willful misconduct, recklessness, bad faith, illegal acts, material breach of this Agreement or other breach of fiduciary duty (if any) to the Company or any Member (including an act not first determined by such Person, in good faith, to be in the best interests of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other hand; provided, however, that any such opinion shall be evidence of good faith. (c) In any action, suit or proceeding against the Company, the Manager, the Members or any member of the Investment Committee relating to or arising, or alleged to relate or arise, out of any such action or non-action, the Manager, the Members and ~~any~~ suchany member of the Investment Committee shall have the right to jointly employ, at the expense of the Company, separate counsel of the Manager's's or, Member’s or investment committee member's choice in such action, suit or proceeding; provided, however, that if retention of joint counsel by such indemnified persons would create a conflict of interest, each group of indemnified persons which would not cause such a conflict shall have the right to employ separate counsel at the expense of the Company; provided further that such counsel is acceptable to the Manager. (d) The satisfaction of the obligations of the Company under this Section 6.08 shall be from and limited to the assets of the Company (excluding the unfunded Commitments of the Members) and no Member shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (g) The provision of advances from Company funds to an Indemnitee for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Indemnitee in the performance of its duties or provision of its services on behalf of the Company; and (ii) the Indemnitee undertakes to repay any funds advanced pursuant to this Section 6.08 in cases in which such Indemnitee would not be entitled to indemnification under this Section 6.08. Notwithstanding the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails in such legal action or proceeding. If advances are permissible under this Section, the Indemnitee shall furnish the Company with an undertaking as set forth above and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such Indemnitee shall be obligated to make payment therefor, any and all amounts for which such Indemnitee believes in good faith that such Indemnitee is entitled to indemnification under this Section 6.08. The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the Manager and the Company's rights to repayment of such amounts shall be secured by the Indemnitee's Interest, if any, or by such other adequate security as the Manager may determine. If a determination is made by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company, that the Company is not obligated in respect of any amount paid by it to a particular Indemnitee, such Indemnitee shall refund such amount within 60 days of such determination, and if a determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular Indemnitee, the Company will pay such amount to such Indemnitee within 60 days of such determination. (h) If indemnification is sought by any Indemnitee pursuant to this Agreement and such indemnification relates to a settlement or to a claim which is not successfully defended by the Indemnitee seeking indemnification, the Company shall not make any payment pursuant to this Section to such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that the indemnification standard set forth above has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company. (i) The Manager may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law or otherwise, and shall continue as to any Indemnitee after such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 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 be asserted.

Appears in 1 contract

Samples: Limited Liability Company Agreement

Liability for Acts and Omissions. (aA) ~~Except as described in Sections 6.08(b)~~No General Partner, ~~neither the Manager, nor any Member, nor any~~ member of the Advisory Committee, Investment Committee or Plan Assets Committee or any of their respective Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives shall have any liability, responsibility or accountability in damages or otherwise to any ~~other Member~~ Partner or the ~~Company~~ Partnership for, and the ~~Company~~ Partnership agrees to indemnify, pay, protect and hold harmless the ~~Manager~~General Partner, ~~the Members and~~ each member of the Advisory Committee, Investment Committee and Plan Assets Committee and their respective Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives (collectively, the “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, ~~actions,~~ actions or proceedings instituted or threatened against the ~~Manager~~ Indemnified Parties or the ~~Company and each member of the Investment Committee),~~ Partnership) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the ~~Manager, the Members, any member of the Investment Committee~~ Indemnified Parties or the ~~Company~~ Partnership in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the ~~Company~~Partnership, on the part of the ~~Manager as the manager~~ Indemnified Parties when acting on behalf of the ~~Company,~~ Partnership (or any of its Investments) or on the part of any brokers or agents when acting on behalf of the ~~Members~~ Partnership (or any ~~member~~ of its Investments); provided, however, that the Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests of the Company. (b) The Manager, the Members or any member of the Investment Committee, as the case may be, General Partner shall be liable, responsible and accountable for and shall ~~indemnify~~ indemnify, pay, protect and hold harmless the ~~Company harmless against~~Partnership from and against (but only with respect to the General Partner and Indemnified Parties which are its Affiliates, shareholders, partners, members, managers, officers, directors, employees, agents and representatives), and the ~~Company~~ Partnership shall not be liable toto any Indemnified Party for, ~~and shall not be obligated to indemnify, such Person for~~ any portion ~~of,~~ of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Partnership) and all costs of investigation in connection therewith asserted against the Partnership which ~~resulted~~ result from ~~such Person's own~~ an Indemnified Party’s fraud, gross negligence, willful misconduct, ~~recklessness,~~ bad ~~faith, illegal acts,~~ faith or material breach of this Agreement or ~~other breach~~ the payment to or receipt by an Indemnified Party of ~~fiduciary duty (if any) to the Company or any Member (including an act not first determined by such Person,~~ benefits in ~~good faith, to be in the best interests~~ violation of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other handthis Agreement; provided, however, ~~that~~ nothing in this provision shall create personal liability on the part of any of the General Partner’s Affiliates or its or their respective shareholders, partners, members, managers, officers, directors, employees, agents or representatives. Notwithstanding the foregoing, such ~~opinion~~ indemnification obligation by the Partnership shall ~~be evidence~~ not apply where an officer or director of ~~good faith. (c)~~ the General Partner is seeking indemnity based on a claim or action brought against such officer or director by another officer or director of the General Partner. In any action, suit or proceeding against the ~~Company, the Manager, the Members~~ Partnership or any ~~member of the Investment Committee~~ Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the ~~Manager, the Members and any member of the Investment Committee~~ Indemnified Parties shall have the right to jointly employ, at the expense of the ~~Company~~Partnership, ~~separate~~ counsel of the ~~Manager's~~Indemnified Parties’ choice, ~~Member’s or investment committee member's choice~~ which counsel shall be reasonably satisfactory to the Partnership, in such action, suit or proceeding; ~~provided, however,~~ provided that if retention of joint counsel by ~~such indemnified persons~~ the Indemnified Parties would create a conflict of interest, each group of ~~indemnified persons~~ Indemnified Parties which would not cause such a conflict shall have the right to ~~employ separate counsel~~ employ, at the expense of the ~~Company; provided further that such~~ Partnership, separate counsel ~~is acceptable~~ of the Indemnified Party’s choice, which counsel shall be reasonably satisfactory to the ~~Manager. (d)~~ Partnership, in such action, suit or proceeding. The satisfaction of the obligations of the ~~Company~~ Partnership under this Section ~~6.08~~ 6.05(A) shall be from and limited to the assets of the ~~Company~~ Partnership (~~excluding the unfunded Commitments of the Members~~which may include Remaining Capital Commitments) and no ~~Member~~ Limited Partner shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (g) The provision of advances from ~~Company~~ Partnership funds to an ~~Indemnitee~~ Indemnified Party for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the ~~Indemnitee~~ Indemnified Party in the performance of its duties or provision of its services on behalf of the ~~Company~~Partnership (or any of its Investments) or in its capacity as a member of the Advisory Committee, Investment Committee or the Plan Assets Committee; and (ii) the ~~Indemnitee~~ Indemnified Party undertakes to repay any funds advanced pursuant to this Section ~~6.08~~ 6.05(B) in cases in which such ~~Indemnitee~~ Indemnified Party would not be entitled to indemnification under ~~this~~ Section ~~6.08. Notwithstanding~~ 6.05(A); provided, that the ~~foregoing, no advances from Company~~ Advisory Committee may determine that the Partnership shall not advance funds to ~~an Indemnitee shall be permitted in connection with~~ the General Partner or its Affiliates for legal expenses and other costs incurred as a result of any legal action or proceeding ~~brought by a Majority in Interest of the Members~~ commenced against the ~~Manager unless~~ General Partner or its Affiliates by Limited Partners in which the ~~Manager prevails in such legal action~~ Limited Partners claim gross negligence, willful misconduct, fraud or ~~proceeding~~a material breach of this Agreement by the General Partner or its Affiliates. If advances are permissible under this ~~Section~~Section 6.05(B), the ~~Indemnitee~~ Indemnified Party shall furnish the ~~Company~~ Partnership with an undertaking as set forth ~~above~~ in clause (ii) of this paragraph and shall thereafter have the right to xxxx the ~~Company~~ Partnership for, or otherwise request the ~~Company~~ Partnership to pay, at any time and from time to time after such ~~Indemnitee~~ Indemnified Party shall be become obligated to make payment therefor, any and all reasonable amounts for which such ~~Indemnitee~~ Indemnified Party believes in good faith that such ~~Indemnitee~~ Indemnified Party is entitled to indemnification under ~~this~~ Section ~~6.08~~6.05(A) with the approval of the General Partner, or if the General Partner or its Affiliates is the Indemnified Party, the Advisory Committee, which approval shall not be unreasonably withheld. The ~~Company~~ Partnership shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the ~~Manager~~ General Partner, and the ~~Company's~~ Partnership’s rights to repayment of such amounts shall be secured by the ~~Indemnitee's~~ Indemnified Party’s Interest, if any, or by such other adequate security as the ~~Manager~~ General Partner, or if the General Partner or its Affiliates is the Indemnified Party, the Advisory Committee may determine. If In the event that a final determination is made ~~by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company,~~ that the ~~Company~~ Partnership is not so obligated in respect of any amount paid by it to a particular ~~Indemnitee~~Indemnified Party, such ~~Indemnitee shall~~ Indemnified Party will refund such amount within 60 days of such final determination, and if in the event that a final determination is made that the ~~Company~~ Partnership is so obligated in respect to any amount not paid by the ~~Company~~ Partnership to a particular ~~Indemnitee~~Indemnified Party, the ~~Company~~ Partnership will pay such amount to such ~~Indemnitee~~ Indemnified Party within 60 days of such final determination, in either case together with interest at the Prime Rate plus two percent from the date paid by the Partnership until repaid by the Indemnified Party or the date it was obligated to be paid by the Partnership until the date actually paid by the Partnership to the Indemnified Party. (hC) ~~If indemnification is sought by~~ All judgments against the Partnership or any ~~Indemnitee pursuant~~ Indemnified Party wherein such persons or entities are entitled to ~~this Agreement and~~ indemnification, must first be satisfied from Partnership assets before the General Partner or such ~~indemnification relates~~ other persons or entities are responsible for these obligations. (D) With respect to ~~a settlement or to a claim~~ the liabilities of the Partnership for which the General Partner is not ~~successfully defended~~ obligated to indemnify the Partnership, whether for the consummation of Investments, professional and other services rendered to it, loans made to it by Partners or others, injuries to persons or property, indemnity to the Indemnified Parties, contractual obligations, guaranties, endorsements or for other reasons similar or dissimilar to any of the foregoing, and without regard to the manner in which any liability of any nature may be incurred by the ~~Indemnitee seeking indemnification~~person to whom it may be owed, ~~the Company shall not make any payment pursuant to this Section to~~ all such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that the indemnification standard set forth above has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company.liabilities: (i) ~~The Manager may rely~~ shall be liabilities of the Partnership as an entity, and shall be ~~protected~~ paid or otherwise satisfied from Partnership assets (and the Partnership shall sell or liquidate all assets and/or make a call for Capital Contributions up to the aggregate Remaining Capital Commitments of the Partners as are necessary to satisfy such liabilities, provided that the reduction in ~~acting~~ Remaining Capital Commitments resulting from payments in response to such call would not cause an acceleration of any indebtedness pursuant to or ~~refraining from acting upon~~ a default under any ~~resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it~~ credit facility referred to ~~be genuine and to have been signed or presented by the proper party or parties.~~in Section 8.04); and (jii) ~~The Manager may consult with legal counsel~~except as provided in paragraph (i) above, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law or otherwise, and shall continue as to any Indemnitee after such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not ~~be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall~~ in any ~~manner terminate, reduce or impair either the right of any past, present or future Indemnitee to~~ event be indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, payable in whole or in ~~part~~part by any Partner, ~~prior~~ or by any director, officer, manager, trustee, employee, agent, shareholder, member, beneficiary or partner of any Partner. Nothing in this Section 6.05(D) shall be construed so as to impose upon the General Partner, its partners, directors, officers, employees, agents or shareholders any liability in circumstances in which the liability arises from a written document which the General Partner has properly entered into or caused the Partnership to enter into if the written document expressly limits liability thereon to the Partnership or expressly disclaims any liability thereunder on the part of any such person or entity. It is expressly acknowledged that the General Partner may enter into written documents of such a type. (E) The General Partner may cause the Partnership, at the Partnership’s expense, to purchase insurance to insure the Indemnified Parties against liability hereunder, including, without limitation, for a breach or an alleged breach of their responsibilities hereunder. The General Partner shall send Notice to the Limited Partners thereof, describing the insurance policy and the premiums paid therefor promptly upon the purchase of such insurance. The Partnership shall not incur the costs of that portion of any insurance, other than public liability insurance, which insures any Indemnified Party for any liability as to which such person is prohibited from being indemnified under Section 6.05(A). (F) If the Indemnified Party is entitled to indemnification from another source or is entitled to recovery by insurance policies, such Indemnified Person shall first seek recovery under any other indemnity or any insurance policies by which such Indemnified Person is indemnified or covered, as the case may be, and shall diligently pursue such other source; provided that (i) such obligation shall not in any manner limit such Indemnified Party’s right to seek indemnification or advances under this Agreement to the extent that the indemnitor with respect to such ~~amendment~~indemnity or the insurer with respect to such insurance policies fails to provide such indemnity or coverage, ~~modification or repeal~~as the case may be, ~~regardless~~ within 15 days of ~~when~~ request by the Indemnified Party and (ii) such ~~claims may be asserted~~Indemnified Party shall remit to the Partnership any funds it recovers from another source to the extent it has been fully indemnified by the Partnership for all losses it incurred.

Appears in 1 contract

Samples: Limited Partnership Agreement (Berkshire Income Realty Inc)

Liability for Acts and Omissions. (a) ~~Except as described in Sections 6.08(b)~~None of the members of the Board of Directors, ~~neither the Manager, nor~~ any Member, any of their Affiliates, nor ~~any member of~~ their members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the ~~Investment Committee~~ "Indemnified Parties") shall have any liability, responsibility or accountability in damages or otherwise to any ~~other~~ Member or the ~~Company~~ REIT for, and the ~~Company~~ REIT agrees to indemnify, pay, protect and hold harmless the ~~Manager, the Members and each member of the Investment Committee~~ Indemnified Parties from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (~~including, without limitation,~~ including all ~~reasonable~~ costs and expenses of attorneys, defense, appeal and settlement of any and all suits, ~~actions,~~ actions or proceedings instituted or threatened against the ~~Manager~~ Indemnified Parties or the ~~Company and each member of the Investment Committee),~~ REIT) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the ~~Manager, the Members, any member of the Investment Committee~~ Indemnified Parties or the ~~Company~~ REIT in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the ~~Company~~REIT, on the part of the ~~Manager as the manager~~ Indemnified Parties when acting on behalf of the ~~Company,~~ REIT or on the part of ~~the Members~~ any brokers or ~~any member~~ agents when acting on behalf of the Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect REIT; provided, however, that ~~such settlement is in the best interests of the Company. (b) The Manager, the Members or any member of the Investment Committee, as the case may be,~~ each Member shall be liable, responsible and accountable for and shall ~~indemnify~~ indemnify, pay, protect and hold harmless the ~~Company harmless against~~REIT from and against the Excluded Liabilities, and the ~~Company~~ REIT shall not be liable toto any Indemnified Party for, ~~and~~ any portion of the Excluded Liabilities; provided, further, however, nothing in this provision shall create personal liability on the part of any Member's Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives. Notwithstanding the foregoing, such indemnification obligation by the REIT shall not ~~be obligated to indemnify,~~ apply where an Indemnified Party is seeking indemnity based on a claim or action brought against such ~~Person~~ Indemnified Party by an officer or director of a Member. If for any ~~portion of, such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements which resulted from such Person's own~~ reason the foregoing indemnification is unavailable to any Indemnified Party (other than by reason of the fraud, gross negligence, or willful ~~misconduct~~misconduct of such Indemnified Party) or insufficient to hold it harmless, ~~recklessness, bad faith, illegal acts, material breach of this Agreement or other breach of fiduciary duty (if any)~~ then the REIT shall contribute to the ~~Company~~ amount paid or ~~any Member (including an act not first determined~~ payable by such ~~Person~~Indemnified Party as a result of such loss, claim, damage or liability in ~~good faith,~~ such proportion as is appropriate to ~~be in~~ reflect not only the ~~best interests of~~ relative benefits received by the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, REIT on the one ~~hand, or the Members~~ hand and such Indemnified Party on the other hand~~; provided~~, ~~however~~but also the relative fault of the REIT and such Indemnified Party, ~~that~~ as well as any ~~such opinion shall be evidence of good faith. (c)~~ relevant equitable considerations. In any action, suit or proceeding against the ~~Company, the Manager, the Members~~ REIT or any ~~member of the Investment Committee~~ Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the ~~Manager, the Members and any member of the Investment Committee~~ Indemnified Parties shall have the right to jointly employ, at the expense of the ~~Company~~REIT, ~~separate~~ counsel of the ~~Manager's, Member’s or investment committee member's~~ Indemnified Parties' choice in such action, suit or proceeding~~; provided~~, ~~however~~which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, provided that if retention of joint counsel by ~~such indemnified persons~~ the Indemnified Parties would create a conflict of interest, each group of ~~indemnified persons~~ Indemnified Parties which would not cause such a conflict shall have the right to ~~employ separate counsel~~ employ, at the expense of the ~~Company; provided further~~ REIT, separate counsel of such group of Indemnified Parties' choice in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such ~~counsel is acceptable to the Manager. (d)~~ action, suit or proceeding. The satisfaction of the obligations of the ~~Company~~ REIT under this Section ~~6.08~~ 6.03(a) shall be from and limited to the assets of the ~~Company (excluding the unfunded Commitments of the Members)~~ REIT and no Member shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (gb) The provision of advances from ~~Company~~ REIT funds to an ~~Indemnitee~~ Indemnified Party for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the ~~Indemnitee~~ Indemnified Party in the performance of its duties or provision of its services on behalf of the ~~Company;~~ REIT and (ii) the ~~Indemnitee~~ Indemnified Party undertakes to repay any funds advanced pursuant to this Section ~~6.08~~ 6.03(b) in cases in which it is ultimately determined that such ~~Indemnitee would~~ Indemnified Party is not be entitled to indemnification under ~~this~~ Section 6.08. Notwithstanding the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails in such legal action or proceeding6.03(a). If advances are ~~permissible~~ made under this ~~Section~~Section 6.03(b), the ~~Indemnitee~~ Indemnified Party shall furnish the ~~Company~~ REIT with an undertaking as set forth ~~above~~ in clause (ii) of this paragraph and shall thereafter have the right to ~~xxxx~~ bill the ~~Company~~ REIT for, or otherwise request the ~~Company~~ REIT to pay, at any ~~time and~~ timx xxd from time to time after such ~~Indemnitee~~ Indemnified Party shall be become obligated to make payment therefor, any and all reasonable amounts for which such ~~Indemnitee~~ Indemnified Party believes in good faith that such ~~Indemnitee~~ Indemnified Party is entitled to indemnification under ~~this~~ Section ~~6.08~~6.03(a) with the approval of the Board of Directors, which approval shall not be unreasonably withheld. The ~~Company~~ REIT shall pay any and all such bills and honor any and all such requests for payment within 60 sixty (60) days after such ~~xxxx~~ bill or request is received by the ~~Manager~~ Board of Directors, and the ~~Company's rights~~ REIT'x xights to repayment of such amounts shall be secured by the ~~Indemnitee~~Indemnified Party's Interest, if any, or by such other adequate security as the ~~Manager~~ Board of Directors may determine. If In the event that a final determination is made ~~by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company,~~ that the ~~Company~~ REIT is not so obligated in respect of any amount paid by it to a particular ~~Indemnitee~~Indemnified Party, such ~~Indemnitee~~ Indemnified Party shall refund such amount within 60 sixty (60) days of such final determination~~, and if~~ . In the event that a final determination is made that the ~~Company~~ REIT is so obligated in respect to of any amount not paid by the ~~Company~~ REIT to a particular ~~Indemnitee~~Indemnified Party, the ~~Company will~~ REIT shall pay such amount to such ~~Indemnitee~~ Indemnified Party within 60 sixty (60) days of such final determination. In either of the foregoing cases, the party obligated to pay shall include with such payment interest at the greater of (i) nine percent (9%) or (ii) the Prime Rate plus two percent (2%) from the date paid by the REIT until repaid by the Indemnified Party or the date it was obligated to be paid by the REIT until the date actually paid by the REIT to the Indemnified Party. (hc) ~~If indemnification is sought by any Indemnitee pursuant to this Agreement and such indemnification relates to a settlement or to a claim which is not successfully defended by~~ All judgments against the Indemnitee seeking indemnification, the Company shall not make any payment pursuant to this Section to such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager REIT or any Indemnified Party wherein such ~~Indemnitee shall have determined that~~ persons or entities are entitled to indemnification must first be satisfied from the ~~indemnification standard set forth above has been met by~~ REIT assets before the Board of Directors or such ~~Indemnitee; provided, however, that if no members of the Investment Committee~~ other persons or entities are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Companyresponsible for these obligations. (id) ~~The Manager~~ With respect to the liabilities of the REIT for which the Board of Directors is not obligated to indemnify the REIT, whether for professional and other services rendered to it, loans made to it by Members or others, injuries to persons or property, indemnity to the Indemnified Parties, contractual obligations, guaranties, endorsements or for other reasons similar or dissimilar to any of the foregoing, and without regard to the manner in which any liability of any nature may ~~rely and shall~~ be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented incurred by the ~~proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted~~ person to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee whom it may be ~~entitled under any agreement~~owed, ~~as a matter of Law or otherwise, and shall continue as to any Indemnitee after~~ all such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 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 be asserted.liabilities:

Appears in 1 contract

Samples: Limited Liability Company Agreement (Glimcher Realty Trust)

Liability for Acts and Omissions. (a) ~~Except as described in Sections 6.08(b)~~None of the General Partner, ~~neither~~ the Investment Manager, ~~nor any Member, nor~~ or any member of the ~~Investment~~ Advisory Committee nor any of their respective Affiliates, members, shareholders, partners, managers, officers, directors, employees, agents and representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Partner, any Class A Member or the ~~Company~~ Fund for, and the ~~Company agrees~~ Fund agrees, to the fullest extent permitted by law, to indemnify, pay, protect and hold harmless the General Partner, the Investment Manager, ~~the Members and~~ each member of the ~~Investment~~ Advisory Committee and their respective Affiliates, members, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (~~including, without limitation,~~ including all ~~reasonable~~ costs and expenses of attorneys, defense, appeal and settlement of any and all suits, ~~actions,~~ actions or proceedings instituted or threatened against the ~~Manager~~ Indemnified Parties or the ~~Company and each member of the Investment Committee),~~ Fund) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the ~~Manager, the Members, any member of the Investment Committee~~ Indemnified Parties or the ~~Company~~ Fund in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the ~~Company~~Fund, on the part of the ~~Manager as the manager~~ Indemnified Parties when acting on behalf of the ~~Company,~~ Fund (or any of the Fund Investments) or on the part of any brokers or agents when acting on behalf of the ~~Members~~ Fund (or any ~~member~~ of the ~~Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless~~ Fund Investments) (collectively, the ~~Company shall first receive an opinion of counsel~~ “Indemnified Liabilities”); provided, however, that (~~which counsel~~ x) the Fund shall not be ~~an Affiliate~~ liable to any Indemnified Party for any portion of any Indemnified Liabilities that results from such Indemnified Party’s fraud, gross negligence (determined in the context of the ~~Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests~~ Standard of Care), willful misconduct or breach of the ~~Company. (b) The Manager, the Members~~ terms of this Agreement or any ~~member of~~ other agreement between such Indemnified Party and the ~~Investment Committee, as~~ Fund or its Affiliates and (y) the ~~case may be,~~ General Partner shall be liable, responsible and accountable for and shall ~~indemnify~~ indemnify, pay, protect and hold harmless the ~~Company harmless against~~Fund from and against any Indemnified Liabilities which result from the General Partner’s, ~~and~~ the Company shall not be liable to, and shall not be obligated to indemnify, such Person for any portion of, such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses Investment Manager’s or ~~disbursements which resulted from such Person's own~~ their respective Affiliates’ fraud, gross ~~negligence~~negligence (determined in the context of the Standard of Care), willful ~~misconduct, recklessness, bad faith, illegal acts, material~~ misconduct or breach of the terms of this Agreement or any other ~~breach of fiduciary duty (if any) to the Company or any Member (including an act not first determined by~~ agreement between such Person, in good faith, to be in the best interests of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager Indemnified Party and the ~~Company, on the one hand,~~ Fund or ~~the Members on the other hand~~its Affiliates; provided, further, however, ~~that~~ nothing in this provision shall create personal liability on the part of any ~~such opinion~~ of the General Partner’s Affiliates or its or their respective members, shareholders, partners, managers, officers, directors, employees, agents or representatives nor shall ~~be evidence~~ this provision relieve any of ~~good faith. (c)~~ them of liability arising under any other agreement or document to which they are parties. In any action, suit or proceeding against the ~~Company, the Manager, the Members~~ Fund or any ~~member of the Investment Committee~~ Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the ~~Manager, the Members and any member of the Investment Committee~~ Indemnified Parties shall have the right to jointly employ, at the expense of the ~~Company~~Fund, counsel of the Indemnified Parties’ choice (reasonably satisfactory to the Fund) in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding, provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the Fund, separate counsel of ~~the Manager's, Member’s or investment committee member's~~ such group of Indemnified Parties’ choice in such action, suit or proceeding, which counsel shall be reputable and qualified in matters of the type that are the subject of such action, suit or proceeding; provided, however, that if ~~retention of joint counsel by such indemnified persons would create a conflict of interest, each group of indemnified persons which would not cause such a conflict~~ any indemnitor shall ~~have the right to employ separate counsel at the expense of the Company; provided further that such counsel is acceptable~~ acknowledge in writing its liability to the ~~Manager. (d)~~ relevant Indemnified Party for any action, suit or proceeding brought by a third party in connection with which such Indemnified Party is seeking indemnification, then such indemnitor shall be entitled to select counsel to defend such action, suit or proceeding, subject to the approval of such Indemnified Party, which approval shall not be unreasonably withheld. The satisfaction of the obligations of the ~~Company~~ Fund under this Section ~~6.08~~ 6.05(a) shall be from and limited to the assets of the ~~Company (excluding the unfunded Commitments of the Members)~~ Fund and no ~~Member~~ Limited Partner shall have any personal liability on account thereof. (e) In any action, suit or proceeding involving a Member's failure to fund its Commitment, the Company shall furnish indemnification to the Manager, members of the Investment Committee, and the respective affiliates, officers, directors and employees of each of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities laws. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (gb) The provision of advances from ~~Company~~ Fund funds to an ~~Indemnitee~~ Indemnified Party for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the ~~Indemnitee~~ Indemnified Party in the performance of its duties or provision of its services on behalf of the ~~Company~~Fund or any of the Fund Investments or the Fund’s subsidiaries or in its capacity as a member of the Advisory Committee; and (ii) the ~~Indemnitee~~ Indemnified Party undertakes to repay any funds advanced pursuant to this Section ~~6.08~~ 6.05(b) in cases in which it is ultimately determined that such ~~Indemnitee would~~ Indemnified Party is not be entitled to indemnification under ~~this~~ Section 6.08. Notwithstanding the foregoing, no advances from Company funds to an Indemnitee shall be permitted in connection with any legal action or proceeding brought by a Majority in Interest of the Members against the Manager unless the Manager prevails in such legal action or proceeding6.05(a). If advances are ~~permissible~~ made under this ~~Section~~Section 6.05(b), the ~~Indemnitee~~ Indemnified Party shall furnish the ~~Company~~ Fund with an undertaking as set forth ~~above~~ in clause (ii) of this paragraph and shall thereafter have the right to xxxx the ~~Company~~ Fund for, or otherwise request the ~~Company~~ Fund to pay, at any time and from time to time after such ~~Indemnitee~~ Indemnified Party shall be become obligated to make payment therefor, any and all reasonable amounts for costs and expenses of the types described in Section 6.05(a) for which such ~~Indemnitee~~ Indemnified Party believes in good faith that such ~~Indemnitee~~ Indemnified Party is entitled to indemnification under ~~this~~ Section ~~6.08~~6.05(a) with the approval of the General Partner, or if the General Partner or its Affiliate is the Indemnified Party, the Advisory Committee, which approval shall not be unreasonably withheld. The ~~Company~~ Fund shall pay any and all such bills and honor any and all such requests for payment within 60 sixty (60) days after such xxxx or request (together with supporting information reasonably satisfactory to the General Partner) is received by the ~~Manager~~ General Partner, and the ~~Company's~~ Fund’s rights to repayment of such amounts shall be secured by the ~~Indemnitee's~~ Indemnified Party’s Interest, if any, or by such other adequate security as the ~~Manager~~ General Partner, or if the General Partner or its Affiliate is the Indemnified Party, the Advisory Committee may determine. If In the event that a final determination is made ~~by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company,~~ that the ~~Company~~ Fund is not so obligated in respect of any amount paid by it to a particular ~~Indemnitee~~Indemnified Party, such ~~Indemnitee~~ Indemnified Party shall refund such amount within 60 sixty (60) days of such final determination~~, and if~~ . In the event that a final determination is made that the ~~Company~~ Fund is so obligated in respect to of any amount not paid by the ~~Company~~ Fund to a particular ~~Indemnitee~~Indemnified Party, the ~~Company will~~ Fund shall pay such amount to such ~~Indemnitee~~ Indemnified Party within 60 sixty (60) days of such final determination. In either of the foregoing cases, the party obligated to pay shall include with such payment interest at the greater of (i) nine percent (9%) or (ii) the Prime Rate plus two percent (2%) from the date paid by the Fund until repaid by the Indemnified Party or the date it was obligated to be paid by the Fund until the date actually paid by the Fund to the Indemnified Party. (hc) If All judgments against the Fund or any Indemnified Party wherein an Indemnified Party is entitled to indemnification must first be satisfied from the Fund assets before the General Partner or such other Indemnified Party is ~~sought by any Indemnitee pursuant~~ responsible for these obligations. (d) With respect to ~~this Agreement and such indemnification relates to a settlement or to a claim~~ the liabilities of the Fund for which the General Partner is not ~~successfully defended~~ obligated to indemnify the Fund, whether for the consummation of Investments, professional and other services rendered to it, loans made to it by Partners or others, injuries to persons or property, indemnity to the Indemnified Parties, contractual obligations, guaranties, endorsements or for other reasons similar or dissimilar to any of the foregoing, and without regard to the manner in which any liability of any nature may be incurred by the ~~Indemnitee seeking indemnification~~person to whom it may be owed, ~~the Company shall not make any payment pursuant to this Section to~~ all such Indemnitee unless those members of the Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that the indemnification standard set forth above has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company.liabilities: (i) ~~The Manager may rely~~ shall be liabilities of the Fund as an entity, and shall be ~~protected~~ paid or otherwise satisfied from Fund assets (and the Fund shall sell or liquidate all assets as necessary to satisfy such liabilities); (ii) to the extent and only to the extent Fund assets are insufficient to satisfy any liability, shall be payable by the General Partner, but, to the fullest extent permitted by law, only to the extent it may be required to make additional contributions to the Fund pursuant to the other terms of this Agreement; and (iii) shall not in ~~acting~~ any event be payable in whole or ~~refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order~~in part by the REIT, or ~~other~~ by any director, officer, trustee, employee, agent, shareholder, beneficiary or partner of any Partner. Nothing in this Section 6.05(d) shall be construed to impose upon the General Partner, its members, partners, directors, officers, employees, agents or shareholders any liability in circumstances in which the liability arises from a written document ~~reasonably believed by it~~ which the General Partner has properly entered into or caused the Fund to ~~be genuine and~~ enter into if the written document expressly limits liability thereon to ~~have been signed~~ the Fund or ~~presented by~~ expressly disclaims any liability thereunder on the ~~proper party or parties~~part of any such Person but this exculpation shall not relieve the General Partner from liability to the Fund pursuant to clause (y) of Section 6.05(a) hereof. (je) The ~~Manager~~ General Partner may ~~consult~~ cause the Fund, at the Fund’s expense, to purchase insurance to insure the General Partner and the other Indemnified Parties against liability hereunder (including liability arising in connection with ~~legal counsel~~the operation of the Fund), ~~accountants~~including for a breach or an alleged breach of their responsibilities hereunder. However, ~~appraisers~~the Fund shall not incur the costs of that portion of any insurance, ~~consultants~~other than public liability insurance, ~~investment bankers and other advisers selected by it, and~~ which insures any ~~act taken or omitted~~ Indemnified Party for any liability as to ~~be taken in reasonable reliance upon the opinion of~~ which such ~~persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct~~person is prohibited from being indemnified under Section 6.05(a). (kf) If the Indemnified Party is entitled to indemnification hereunder and is entitled to indemnification from another source or to recovery by insurance policies, such Indemnified Party shall diligently and continuously pursue such other source, provided that (i) such obligation shall not in any manner limit such Indemnified Party’s right to seek indemnification or advances under this Agreement and (ii) such Indemnified Party shall remit to the Fund any funds it recovers from another source to the extent that the sum of the amounts recovered from such other source plus the amounts recovered from the Fund exceeds the aggregate losses it incurred for which it is entitled to indemnification hereunder. (g) The ~~indemnification provided by~~ reimbursement, indemnity and contribution obligations of the Fund under this Section ~~6.08~~ 6.05 shall (i) be in addition to any liability which the Fund may otherwise have, (ii) not be deemed to be exclusive of any other rights to which ~~an Indemnitee~~ any Indemnified Party may be entitled to under any agreement, as a matter of ~~Law~~ law or otherwise, both as to action in an Indemnified Party’s official capacity and ~~shall~~ to action in another capacity, (iii) continue as to ~~any Indemnitee after such Indemnitee has~~ an Indemnified Party who shall have ceased to have ~~the status~~ an official capacity for acts or ~~responsibilities that initially entitled~~ omissions during such ~~Person to indemnification as an Indemnitee~~ official capacity and ~~shall~~ (iv) be binding upon and inure to the benefit of ~~the heirs,~~ any successors, ~~assigns~~ assigns, heirs and ~~administrators~~ personal representatives of the ~~Indemnitee~~Fund, ~~but shall not be deemed to create~~ the General Partner and any ~~rights for the benefit of any~~ such other ~~persons~~Indemnified Party. (lh) ~~No amendment, modification or repeal of~~ The indemnification rights provided for in this Section ~~6.08~~ 6.05 shall survive the termination of the Fund or this Agreement, except that no claim may be asserted by any ~~provision hereof~~ Indemnified Party against any indemnitor under this Section 6.05 after the third anniversary of the termination of the Fund unless written notice of such claim (describing such claim in reasonable detail) shall ~~in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be indemnified~~ have been provided by the ~~Company or~~ Indemnified Party to the ~~obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 as in effect immediately~~ indemnitor prior to such ~~amendment, modification or repeal with respect~~ third anniversary and such claim shall be prosecuted promptly thereafter and pursued diligently 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 be asserted~~completion.

Appears in 1 contract

Samples: Limited Partnership Agreement (CIM Commercial Trust Corp)

Liability for Acts and Omissions. (aA) ~~Except as described in Sections 6.08(b), neither the Manager,~~ No Managing Member nor any ~~Member~~of its Affiliates, ~~nor any member of the Investment Committee~~ shareholders, partners, managers, officers, directors, employees, agents or representatives shall have any liability, responsibility or accountability in damages or otherwise to any other Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the ~~Manager~~Managing Member, and its Affiliates, shareholders, partners, managers, officers, directors, employees, agents and representatives (collectively, the ~~Members and each member of the Investment Committee~~ “Indemnified Parties”) from and against, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, ~~actions,~~ actions or proceedings instituted or threatened against the ~~Manager~~ Indemnified Parties or the ~~Company and each member of the Investment Committee),~~ Company) and all costs of investigation in connection therewith which may be imposed on, incurred by, or asserted against the ~~Manager, the Members, any member of the Investment Committee~~ Indemnified Parties or the Company in any way relating to or arising out of, or alleged by the party bringing the claim to relate to or arise out of, any action or inaction on the part of the ~~Company,~~ Company on the part of the ~~Manager as the manager~~ Indemnified Parties when acting on behalf of the ~~Company,~~ Company (or the Investment) or on the part of ~~the Members~~ any brokers or ~~any member~~ agents when acting on behalf of the ~~Investment Committee in its capacity as such. No settlement of any such suits shall be permitted unless~~ Company (or the Company shall first receive an opinion of counsel (which counsel shall not be an Affiliate of the Manager and shall be reasonably acceptable to the Investment Committee) to the effect that such settlement is in the best interests of the Company. (b) The ManagerInvestment); provided that, the ~~Members or any member of the Investment Committee, as the case may be,~~ Managing Member shall be liable, responsible and accountable for and shall ~~indemnify~~ indemnify, pay, protect and hold harmless the Company ~~harmless against~~from and against (but only with respect to the Managing Member and Indemnified Parties which are its Affiliates, shareholders, partners, managers, officers, directors, employees, agents and representatives), and the Company shall not be liable toto any Indemnified Party for, ~~and shall not be obligated to indemnify, such Person for~~ any portion ~~of,~~ of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses or disbursements of any kind or nature whatsoever (including, without limitation, all reasonable costs and expenses of attorneys, defense, appeal and settlement of any and all suits, actions or proceedings instituted or threatened against the Company) and all costs of investigation in connection therewith asserted against the Company which ~~resulted~~ result from ~~such Person's own~~ an Indemnified Party’s fraud, gross negligence, willful misconduct, ~~recklessness,~~ bad faith, ~~illegal acts,~~ breach of fiduciary duty or material breach of this Agreement or ~~other breach~~ the payment to or receipt by an Indemnified Party of ~~fiduciary duty (if any) to the Company or any Member (including an act not first determined by such Person,~~ benefits in ~~good faith, to be in the best interests~~ violation of the Company). An action of the Manager that improperly benefits the Manager shall constitute a material breach, regardless of intent, opinion of counsel or other adviser insofar as there is disagreement or dispute between the Manager and the Company, on the one hand, or the Members on the other handthis Agreement; provided, however, that nothing in this provision shall create personal liability on the part of any of the Managing Member’s Affiliates or its or their respective shareholders, partners, managers, officers, directors, employees, agents or representatives (except for the Managing Member). Notwithstanding the foregoing, such ~~opinion~~ indemnification obligation by the Company shall ~~be evidence~~ not apply where an officer or director of ~~good faith. (c)~~ the Managing Member is seeking indemnity based on a claim or action brought against such officer or director by another officer or director of the Managing Member or any Affiliate of the Managing Member. In any action, suit or proceeding against the ~~Company, the Manager, the Members~~ Company or any ~~member of the Investment Committee~~ Indemnified Party relating to or arising, or alleged by the party bringing the claim to relate to or ~~arise,~~ arise out of any such action or non-action, the ~~Manager, the Members and any member of the Investment Committee~~ Indemnified Parties shall have the right to jointly employ, at the expense of the Company, ~~separate~~ counsel of the ~~Manager's~~Indemnified Parties’ choice, ~~Member’s or investment committee member's choice~~ which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceeding; ~~provided, however,~~ provided that if retention of joint counsel by ~~such indemnified persons~~ the Indemnified Parties would create a conflict of interest, each group of ~~indemnified persons~~ Indemnified Parties which would not cause such a conflict shall have the right to ~~employ separate counsel~~ employ, at the expense of the Company~~; provided further that such~~ , separate counsel ~~is acceptable~~ of the Indemnified Party’s choice, which counsel shall be reasonably satisfactory to the ~~Manager. (d)~~ Company, in such action, suit or proceeding. The satisfaction of the obligations of the Company under this Section ~~6.08~~ 6.03(A) shall be from and limited to the assets of the Company ~~(excluding the unfunded Commitments of the Members)~~ and no Member shall have any personal liability on account thereof~~. (e~~. Notwithstanding the foregoing or Section 6.03(B) ~~In any action~~below, ~~suit or proceeding involving~~ unless a ~~Member's failure to fund its Commitment~~majority of the Percentage Interests of the Members shall have approved in writing a greater amount, the Company shall ~~furnish~~ not, with respect to legal expenses and other costs resulting from legal actions and/or proceedings only, indemnify all Indemnified Parties for and/or advance to all Indemnified Parties, an aggregate amount in excess of Ten Million Dollars ($10,000,000). To the extent an Indemnified Party is seeking indemnification for a matter which relates to the ~~Manager~~Investment but not the Company, ~~members~~ the Company will only be liable for its pro rata share of the ~~Investment Committee, and~~ indemnification obligation based on the ~~respective affiliates, officers, directors and employees of each~~ relative percentage interest of the foregoing (collectively, “Indemnitees”) as to liabilities arising under federal and state securities laws unless the same arise as a result of a violation of such law by an Indemnitee. Anything contained herein to the contrary notwithstanding, the Indemnitees shall not be indemnified for any loss or damage incurred by them or any of them Company in connection with any lawsuit involving allegations that federal or state securities laws were violated by, such Indemnitee unless (i) (A) a court of competent jurisdiction approves a settlement of the claims, provided, however, that such approval shall not be necessary if the Manager with the concurrence of the Investment Committee reasonably believes that such settlement shall be in the Company's best interest, (B) there has been an adjudication on the merits of each count involving securities law violations favorable to the particular Indemnitee, or (C) such claims have been dismissed with prejudice on the merits as to the particular Indemnitee by a court of competent jurisdiction, and (ii) such indemnification is specifically approved by a court of competent jurisdiction which shall have been advised as to the current position of the Securities and Exchange Commission regarding indemnification for violations of securities lawsACEP LLC. (f) The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, that insures any Indemnitee for any liability as to which such person is prohibited from being indemnified under this Section 6.08, and if any additional incremental cost shall be required by any insurer of the Company to provide insurance covering the Manager for any liability of the Manager as to which the Manager is indemnified pursuant to this Section 6.08, the Company shall not purchase insurance for such liability without the prior approval of the Investment Committee. (gB) The provision of advances from ~~Company~~ the Company’s funds to an ~~Indemnitee~~ Indemnified Party for reasonable legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged by the party bringing the claim to relate to or arise out of, any action or inaction on the part of the ~~Indemnitee~~ Indemnified Party in the performance of its duties or provision of its services on behalf of the ~~Company~~Company or the Investment; and (ii) the ~~Indemnitee~~ Indemnified Party undertakes to repay any funds advanced pursuant to this Section ~~6.08~~ 6.03(B) in cases in which such ~~Indemnitee~~ Indemnified Party would not be entitled to indemnification under ~~this~~ Section ~~6.08. Notwithstanding~~ 6.03(A); provided that a majority of the ~~foregoing, no advances from~~ Percentage Interests of the Members may determine that the Company shall not advance funds to ~~an Indemnitee shall be permitted in connection with~~ the Managing Member or its Affiliates for legal expenses and other costs incurred as a result of any legal action or proceeding ~~brought by a Majority in Interest of the Members~~ commenced against the ~~Manager unless~~ Managing Member or its Affiliates by other Members in which the ~~Manager prevails in such legal action~~ other Members claim gross negligence, willful misconduct, fraud, bad faith, breach of fiduciary duty or ~~proceeding~~a material breach of this Agreement by the Managing Member or its Affiliates. If advances are permissible under this ~~Section~~Section 6.03(B), the ~~Indemnitee~~ Indemnified Party shall furnish the Company with an undertaking as set forth ~~above~~ in clause (ii) of this paragraph and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such ~~Indemnitee~~ Indemnified Party shall be become obligated to make payment therefor, any and all reasonable amounts for which such ~~Indemnitee~~ Indemnified Party believes in good faith that such ~~Indemnitee~~ Indemnified Party is entitled to indemnification under ~~this~~ Section ~~6.08~~6.03(A) with the approval of the Managing Member, or if the Managing Member or its Affiliates is the Indemnified Party, a majority of the Percentage Interests of the Members, which approval shall not be unreasonably withheld. The Company shall pay any and all such bills and honor any and all such requests for payment within 60 sixty (60) days after such xxxx or request is received by the ~~Manager~~ Managing Member, and the Company's ’s rights to repayment of such amounts shall be secured by the ~~Indemnitee's~~ Indemnified Party’s Interest, if any, or by such other adequate security as the ~~Manager~~ Managing Member, or if the Managing Member or its Affiliates is the Indemnified Party, a majority of the Percentage Interests of the Members may determine. If In the event that a final determination is made ~~by a court of competent jurisdiction, the Investment Committee, or an independent legal counsel retained by the Investment Committee on behalf of the Company,~~ that the Company is not so obligated in respect of any amount paid by it to a particular ~~Indemnitee~~Indemnified Party, such ~~Indemnitee shall~~ Indemnified Party will refund such amount within 60 sixty (60) days of such final determination, and if in the event that a final determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular ~~Indemnitee~~Indemnified Party, the Company will pay such amount to such ~~Indemnitee~~ Indemnified Party within 60 sixty (60) days of such final determination, in either case together with interest at the greater of (i) ten percent (10%) or (ii) the Prime Rate plus two percent (2%) from the date paid by the Company until repaid by the Indemnified Party or the date it was obligated to be paid by the Company until the date actually paid by the Company to the Indemnified Party. (hC) All judgments against the Company or any Indemnified Party wherein such persons or entities are entitled to indemnification, must first be satisfied from the assets of the Company before the Member or such Indemnified Party is responsible for these obligations. (D) With respect to the liabilities of the Company for which the Managing Member is not obligated to indemnify the Company, whether for the consummation of the Investment, professional and other services rendered to it, loans made to it by Members or others, injuries to persons or property, indemnity to the Indemnified Parties, contractual obligations, guaranties, endorsements or for other reasons similar or dissimilar to any of the foregoing, and without regard to the manner in which any liability of any nature may be incurred by the person to whom it may be owed, all such liabilities: (1) shall be liabilities of the Company as an entity, and shall be paid or otherwise satisfied from assets of the Company (and the Company shall sell or liquidate all assets and/or make a call for Capital Contributions as are necessary to satisfy such liabilities); and (2) except as provided in paragraph (1) above, shall not in any event be payable in whole or in part by any Member, or by any director, officer, trustee, employee, agent, shareholder, beneficiary or Member of any Member. Nothing in this Section 6.03(D) shall be construed so as to impose upon the Managing Member, its partners, directors, officers, employees, agents or shareholders any liability in circumstances in which the liability arises from a written document which the Managing Member has properly entered into or caused the Company to enter into if the written document expressly limits liability thereon to the Company or expressly disclaims any liability thereunder on the part of any such person or entity. (E) The Managing Member may cause the Company, at the Company’s expense, to purchase insurance to insure the Indemnified Parties against liability hereunder, including, without limitation, for a breach or an alleged breach of their responsibilities hereunder. The Managing Member shall send Notice to the Members thereof, describing the insurance policy and the premiums paid therefor promptly upon the purchase of such insurance. The Company shall not incur the costs of that portion of any insurance, other than public liability insurance, which insures any Indemnified Party for any liability as to which such person is prohibited from being indemnified under Section 6.03(A). The Managing Member shall, at its expense, purchase a fidelity bond in an amount of not less than Ten Million Dollars ($10,000,000) and will also, at the Company’s expense, acquire additional insurance, with the fidelity bond serving as the first loss insurance, as the Managing Member reasonably determines necessary to insure the Company against matters for which the Managing Member is obligated to indemnify the Company hereunder. (F) If the Indemnified Party is entitled to indemnification from another source or is ~~sought~~ entitled to recovery by insurance policies, such Indemnified Person shall diligently pursue such other source; provided that (i) such obligation shall not in any ~~Indemnitee pursuant~~ manner limit such Indemnified Party’s right to seek indemnification or advances under this Agreement and (ii) such ~~indemnification relates~~ Indemnified Party shall remit to ~~a settlement or to a claim which is not successfully defended by the Indemnitee seeking indemnification,~~ the Company ~~shall not make~~ any ~~payment pursuant~~ funds it recovers from another source to ~~this Section to such Indemnitee unless those members of~~ the ~~Investment Committee who are neither Indemnitees seeking indemnification nor affiliated with the Manager or any such Indemnitee shall have determined that the indemnification standard set forth above~~ extent it has been met by such Indemnitee; provided, however, that if no members of the Investment Committee are eligible to make the foregoing determination or if the Investment Committee shall otherwise approve, such determination shall be made by independent legal counsel retained by the Investment Committee on behalf of the Company. (i) The Manager may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. (j) The Manager may consult with legal counsel, accountants, appraisers, consultants, investment bankers and other advisers selected by it, and any act taken or omitted to be taken in reasonable reliance upon the opinion of such persons professional or expert competence shall be presumed to have been done or omitted to be done in good faith and not to constitute gross negligence or willful misconduct. (k) The indemnification provided by this Section 6.08 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of Law or otherwise, and shall continue as to any Indemnitee after such Indemnitee has ceased to have the status or responsibilities that initially entitled such Person to indemnification as an Indemnitee and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee, but shall not be deemed to create any rights for the benefit of any other persons. (l) No amendment, modification or repeal of this Section 6.08 or any provision hereof shall in any manner terminate, reduce or impair either the right of any past, present or future Indemnitee to be fully indemnified by the Company or the obligation of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.08 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 be assertedfor all losses it incurred.

Appears in 1 contract

Samples: Loan Agreement (American Casino & Entertainment Properties LLC)

Common use of Liability for Acts and Omissions Clause in Contracts