Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper or such director, partner or officer acted in good faith. (b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders. (c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith. (d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement. (e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement. (f) Any amendment, modification or repeal of this Section 6.9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 6 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Clipper Realty Inc.), Limited Liability Company Agreement (Clipper Realty Inc.)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Members expressly agree acknowledge that if there the Managing Member is a conflict between acting for the duties owed by Clipper’s directors benefit of the Company, the Members and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member’s shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is under no obligation to give priority to the Members by acting the best separate interests of Clipperthe Members or the Managing Member’s stockholdersshareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member’s shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith and has not breached its express covenants set forth in this Agreement.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Healthpeak Properties, Inc.), Limited Liability Company Agreement (Hcp, Inc.), Limited Liability Company Agreement (Hcp, Inc.)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Members expressly agree acknowledge that if there the Managing Member is a conflict between acting for the duties owed by Clipper’s directors benefit of the Company, the Members and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member's shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith and has not breached its express covenants set forth in this Agreement.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Health Care Property Investors Inc), Limited Liability Company Agreement (Health Care Property Investors Inc), Limited Liability Company Agreement (Pan Pacific Retail Properties Inc)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to A. To the maximum extent permitted under the Act, the only duties that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise Member owes to the Company, any Members Member or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or other Person (including any creditor of any act Member or omission if Assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. The Managing Member, Clipper or such director, partner or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the general partner Company, any Member or any other Person (including any creditor of any Member or any Assignee of Membership Interest). The provisions of this Agreement shall create contractual obligations of the Managing Member only, and no such provisions shall be interpreted to create, expand or modify any fiduciary duties of the Managing Member.
B. The Non-Managing Members agree that: (i) the Managing Member is acting for the benefit of the Company, to the MembersNon-Managing Members and CLNS Credit’s stockholders, Clipper collectively; and (ii) in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of CLNS Credit or its stockholders, on the other hand, the Managing Member may fulfill its duties give priority to the Members by acting the best separate interests of ClipperCLNS Credit and its stockholders (including with respect to the tax consequences to Non-Managing Members, Assignees or CLNS Credit’s stockholders) and, in the event of such a conflict, any action or failure to act on the part of CLNS Credit that gives priority to the separate interests of CLNS Credit or its stockholders that does not result in a violation of the contract rights of the Non-Managing Members under this Agreement and does not violate any duty owed by the Managing Member to the Company or the Members.
C. In exercising its authority under this Agreement, the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (cor not taken) by it. Except as otherwise agreed by the Company, the Managing Member and the Company shall not have liability to a Non-Managing Member under any circumstances as a result of any income tax liability incurred by such Non-Managing Member as a result of an action (or inaction) by the Managing Member or the Company pursuant to the Managing Member’s authority under this Agreement.
D. Subject to its obligations and duties as Managing Member managing member of the Company set forth in Section 6.2 hereofthis Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to agents, including the supervision and control of the Managing Member)Manager. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
(d) To E. In performing its duties under this Agreement and the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the MembersAct, the Managing Member shall not be liable entitled to the Company or to any other Member for its good faith reliance rely on the provisions of this AgreementAgreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any Subsidiary of the Company, prepared or presented by an officer, employee or agent of the Managing Member or the Manager or any agent of the Company or any such Subsidiary, or by a lawyer, certified public accountant, appraiser or other person engaged by the Company as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion. The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
F. Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (ei) to protect the ability of CLNS Credit to continue to qualify as a REIT, (ii) for CLNS Credit otherwise to satisfy the REIT Requirements, (iii) to avoid CLNS Credit incurring any taxes under Code Section 857 or Code Section 4981, (iv) to protect the ability of the Company to be treated as a partnership or disregarded entity for federal income tax purposes, or (v) for any wholly owned Subsidiary of CLNS Credit to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or disregarded entity (determined for federal income tax purposes) thereof, is expressly authorized under this Agreement, is deemed approved by all of the Non-Managing Members and does not violate any duty of the Managing Member to the Company or any other Member.
G. Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to any express indemnities given to the Company by any the Managing Member pursuant to any other written instrument, no the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited hereunder except pursuant to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or servicesSection 15.1 hereof. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to Section 15.1 hereof or any such express indemnity, no property or assets of any the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members Member(s) and arising out of, or in connection with, this Agreement.
(f) H. No manager, member, officer or agent of the Managing Member, and no director, officer, employee or agent of CLNS Credit shall have any duties directly to the Company or any Member. No manager, member, officer or agent of the Managing Member or any director, officer or agent of CLNS Credit shall be directly liable to the Company or any Member for money damages by reason of their service as such.
I. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Managing Member’s, and or its officers’ and managers, members, directors’, liability officers or agents, to the Company and the Members under this Section 6.9 7.8, as in effect immediately prior to such amendment, modification or repeal repeal, with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Colony NorthStar Credit Real Estate, Inc.), Master Combination Agreement (NorthStar Real Estate Income II, Inc.), Master Combination Agreement (Colony NorthStar, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware New York law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper or such director, partner or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) Any amendment, modification or repeal of this Section 6.9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Clipper Realty Inc.), Limited Liability Company Agreement (Clipper Realty Inc.)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their its directors, partners officers, agents or officers employees shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner officer, agent or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner employee of the Managing Member, to as the Memberscase may be, Clipper acted in good faith and has not engaged in gross negligence or breached its express covenants set forth in this Agreement.
B. The Non-Managing Members expressly acknowledge that the Managing Member is acting for the benefit of the Company, the Members and the Managing Member’s shareholders collectively, that the Managing Member may fulfill its duties is under no obligation to give priority to the Members by acting the best separate interests of Clipperthe Members or the Managing Member’s stockholdersshareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member’s shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith and has not engaged in gross negligence or breached its express covenants set forth in this Agreement.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and ’, directors’, agents’ or employees’ liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Hcp, Inc.), Limited Liability Company Agreement (Hcp, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to To the maximum extent permitted under the Act, the only duties that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise Member owes to the Company, any Member or any other Person (including any creditor of any Member or assignee of any LLC Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the obligation of good faith and fair dealing. The Managing Member, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the Company, any Member or any other Person (including any creditor of any Member or any assignee of an LLC Interest). The provisions of this Agreement other than this Section 7.8 shall create contractual obligations of the Managing Member only, and no such provision shall be interpreted to expand or modify the fiduciary duties of the Managing Member under the Act.
(b) The Members agree that: (i) the Managing Member is acting for the benefit of the Company, the Members and the Managing Member’s unitholders collectively; (ii) notwithstanding any duty otherwise existing at law or in equity, in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of the Managing Member or its unitholders, on the other hand, the Managing Member may give priority to the separate interests of the Managing Member or the unitholders of the Managing Member (including, without limitation, with respect to tax consequences to Members, Assignees or the Managing Member’s unitholders), and, in the event of such a conflict, and any action or failure to act on the part of the Managing Member (or the Managing Member’s directors, officers or agents) that gives priority to the separate interests of the Managing Member or its unitholders that does not result in a violation of the contract rights of the Members under this Agreement does not violate the duty of loyalty or any other duty owed by the Managing Member to the Company and/or the Members or violate the obligation of good faith and fair dealing; and (iii) the Managing Member shall not be liable to the Company or to any Assignees Member for monetary damages for losses sustained, liabilities incurred or benefits not derived as a result of errors by the Company or any Member in judgment or mistakes of fact or law or of any act or omission if connection with such decisions, except for liability for the Managing Member’s fraud, Clipper willful misconduct or such director, partner or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholdersgross negligence.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereofthis Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees officers, employees, representatives or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such officer, employee, representative or agent appointed by it in good faith.
(d) Any obligation or liability whatsoever of the Managing Member which may arise at any time under this Agreement or any other instrument, transaction, or undertaking contemplated hereby shall be satisfied, if at all, out of the assets of the Managing Member or the Company only. No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, any of the Managing Member’s directors, unitholders, officers, employees, representatives or agents, regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. Notwithstanding anything to the contrary set forth in this Agreement, none of the directors or officers of the Managing Member shall be liable or accountable in damages or otherwise to the Company, any Members, or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission or by reason of their service as such. This Agreement is executed by the officers of the Managing Member solely as officers of the same and not in their own individual capacities.
(e) Notwithstanding anything herein to the contrary, except for liability for fraud, willful misconduct or gross negligence on the part of the Managing Member, or pursuant to any express indemnities given to the Company by the Managing Member pursuant to any other written instrument, the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, except pursuant to Section 15.1. Without limitation of the foregoing, and except for liability for fraud, willful misconduct or gross negligence, or pursuant to Section 15.1 or any such express indemnity, no property or assets of the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Member(s) and arising out of, or in connection with, this Agreement.
(f) To the extent that, at law or in equityunder applicable law, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever. The provisions of this Agreement, to the Company extent that they restrict or to modify the other Members, for the debts or duties and liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member under the Act or Clipper shall be liable otherwise existing under applicable law, are agreed by the Members to operate as an express limitation of any such duties and liabilities and to replace such other duties and liabilities of such Managing Member and further acknowledged and agreed that such provisions are fundamental elements to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation agreement of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, the Managing Member to enter into this Agreement and without such provisions the Members and the Managing Member would not have entered into this Agreement.
(fg) In exercising its authority under this Agreement, the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (or not taken) by it, and any action or failure to act on the part of the Managing Member that does or does not take into account any such tax consequences that does not result in a violation of the contract rights of the Members under this Agreement does not violate the duty of loyalty or any other duty owed by the Managing Member to the Company and/or the Members or violate the obligation of good faith and fair dealing. The Managing Member and the Company shall not have any liability to any Member under any circumstances as a result of any income tax liability incurred by such Member as a result of an action (or inaction) by the Managing Member pursuant to its authority under this Agreement.
(h) Whenever in this Agreement the Managing Member (whether in its capacity as Managing Member or in any other capacity permitted under this Agreement, including, without limitation, as Liquidator) is permitted or required to make a decision (i) in its “sole and absolute discretion,” “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Managing Member shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest or factors affecting the Company or the Members or any of them, and any such decision or determination made by the Managing Member that does not consider such interests or factors affecting the Company or the Members, or any of them, and that does not result in a violation of the contract rights of the Members under this Agreement does not violate the duty of loyalty or any other duty owed by the Managing Member to the Company and/or the Members, or (ii) in its “good faith” or under another expressed standard, the Managing Member shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise. If any question should arise with respect to the operation of the Company, which is not otherwise specifically provided for in this Agreement or the Act, or with respect to the interpretation of this Agreement, the Managing Member is hereby authorized to make a final determination with respect to any such question and to interpret this Agreement in such a manner as it shall deem, in its sole discretion, to be fair and equitable, and its determination and interpretations so made shall be final and binding on all parties. The Managing Member’s “sole and absolute discretion,” “sole discretion” and “discretion” under this Agreement shall be exercised consistently with good faith reliance on the provisions of this Agreement and the obligation of good faith and fair dealing (as modified by the Agreement).
(i) The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties. In performing its duties under this Agreement and the Act, the Managing Member shall be entitled to rely on the provisions of this Agreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any subsidiary of the Company, prepared or presented by any officer, employee or agent of the Managing Member, any agent of the Company or any such subsidiary, or by any lawyer, certified public accountant, appraiser or other person engaged by the Managing Member, the Company or any such subsidiary as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such information, opinion, report or statement.
(j) No director, officer or agent of the Managing Member shall have any duties directly to the Company or any Member. No director, officer or agent of the Managing Member shall be directly liable to the Company or any Member for money damages by reason of their service as such.
(k) Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of Lineage REIT to continue to qualify as a REIT, (ii) for Lineage REIT otherwise to satisfy the REIT Requirements, (iii) for Lineage REIT to avoid incurring any taxes under Code Section 857 or Code Section 4981, or (iv) for any Managing Member Affiliate to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or “taxable REIT subsidiary” (within the meaning of Code Section 856(l)), is expressly authorized under this Agreement and is deemed approved by all of the Members and does not violate the duty of loyalty or any other duty or obligation, fiduciary or otherwise, of the Managing Member to the Company or any other Member.
(l) Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, ’s and its officers’ and directors’, ’ liability to the Company and the Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 2 contracts
Samples: Operating Agreement (Lineage, Inc.), Operating Agreement (Lineage, Inc.)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Members expressly agree acknowledge that if there the Managing Member is a conflict between acting for the duties owed by Clipper’s directors benefit of the Company, the Members and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member's shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bre Properties Inc /Md/)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of the Managing Member, Clipper its Affiliates (including, for this purpose, RAML and its Affiliates so long as RAML shall be the Responsible Enxxxx of the LPT), or any of their rxxxxctive officers, directors, partners stockholders, partners, members, employees, representatives or officers agents or any officer, employee, representative or agent of the Company and its Affiliates (individually, a "Covered Person" and collectively, the "Covered Persons") shall be liable or accountable in for monetary damages or otherwise to the Company, Company or any Members or any Assignees for losses sustained, sustained or liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing MemberCovered Person's conduct did not constitute an intentional misappropriation of Company funds or fraud, Clipper gross negligence, intentional misconduct or such director, partner a breach of a fiduciary duty (if any) owed to the Company or officer acted its Members in good faiththe discharge of its duties under this Agreement.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) B. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faithagents.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) C. Any amendment, modification or repeal of this Section 6.9 7.7 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, Covered Person's liability to the Company and the Non-Managing Members under this Section 6.9 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
D. To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to the Members that purport to be restricted or waived by this Agreement, any Covered Person acting under this Agreement or otherwise shall not be liable to the Company or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Covered Person to the extent set forth herein.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Reckson Operating Partnership Lp)
Liability of the Managing Member. (a) Notwithstanding anything to Except as otherwise specifically provided herein or under the contrary set forth in this AgreementAct, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing MemberMember nor its Affiliates, Clipper nor any agent, representative, director, officer or employee of any of their directorsthem, partners or officers shall be liable liable, responsible or accountable in damages or otherwise to the Company, Company or to any Members or any Assignees Member for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if performed or omitted on behalf of the Managing Member, Clipper or such director, partner or officer acted Company in good faith. In exercising its right hereunder, Managing Member shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data provided by any attorney, accountant or other professional engaged in connection with the Company and/or Property.
(b) The Members expressly agree that if there is a conflict between Notwithstanding anything to the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, contrary in its capacity as the general partner of the Managing Memberthis Agreement, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Membersany Subsidiary, any Member, any Affiliate of any Member or any other Person, the Managing Member Member, acting under this Agreement, shall not be liable to the Company Company, any Subsidiary, any Member, any Affiliate of any Member or to any other Member Person, for a breach of fiduciary duty for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to , and the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoeverprovisions of this Agreement, to the Company extent that they restrict or to eliminate the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, duties (including fiduciary duties) and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder liability of the Managing Member otherwise existing at law or Clipper shall be liable in equity, are agreed by each Member to the Company for money damages except for (1) active replace such other duties and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation liabilities of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(fc) Any amendmentExcept as otherwise specifically provided herein or under the Act, modification the Managing Member shall not be personally liable for the return or repeal payment of this Section 6.9 all or any provision hereof portion of the Capital Contributions of or distributions to any Member (or any successor, assignee or transferee thereof), it being expressly agreed that any such return of Capital Contributions or distributions pursuant to this Agreement shall be prospective only and made solely from the assets of the Company (which assets shall not in include any way affect the limitations on right of contribution from the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rouse Properties, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or Member and its officers and directors shall not be liable or accountable in for monetary damages or otherwise to the Company, any Members or any Assignees for losses sustained, sustained or liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if unless the Managing Member acted in bad faith or breached an explicit term of this Agreement and the act or omission was material to the matter giving rise to the loss, liability or benefit not derived.
(b) The Investor Members expressly acknowledge that the Managing Member is acting on behalf of the Company and the Managing Member's Affiliates (including CharterMac) collectively, that the Managing Member, Clipper subject to the provisions of Section 8.2(b) and Section 8.2(d) hereof, is under no obligation (fiduciary or otherwise) to consider the separate interest of the Investor Members (including, without limitation, the tax consequences to Investor Members or Assignees) in deciding whether to cause the Company to take (or decline to take) any actions, and that the Managing Member shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Investor Members in connection with such directordecisions, partner or officer provided that the Managing Member has acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it the Managing Member in good faith.
(d) Whenever this Agreement or any other agreement contemplated hereby provides that the Managing Member, any of its Affiliates or any Indemnitee is permitted or required to make a decision (i) in its "discretion" or under a grant of similar authority or latitude, the Managing Member or such Affiliate or Indemnitee shall be entitled to consider such interests and factors as it desires and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any Member, or (ii) in its "good faith" or under another express standard, the Managing Member, such Affiliate or any Indemnitee shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement, any other agreement contemplated hereby or applicable law or equitable principles.
(e) To the extent that, at law or in equity, the Managing Member Member, any of its Affiliates or any Indemnitee has duties (including fiduciary duties) and liabilities relating thereto thereto, to the Company or the Membersany Member, the Managing Member or such Affiliate or Indemnitee acting under this Agreement shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e; provided that nothing contained in this Section 7.6(e) Notwithstanding anything herein to shall relieve the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Managing Member pursuant to any other written instrument, no Member shall have any personal from liability whatsoeverunder Section 7.6(a) in respect of a breach of an explicit term of this Agreement. The provisions of this Agreement, to the Company or to extent they restrict the other Members, for the debts or duties and liabilities of the Company Managing Member, any of its Affiliates or any such Indemnitee otherwise existing at law or in equity, are agreed by the Company’s obligations hereunder, Members to completely replace such other duties and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder liabilities of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment such Affiliate or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this AgreementIndemnitee.
(f) Any amendment, modification or repeal of this Section 6.9 7.6 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, 's and its officers’ ' and directors’, ' liability to the Company and the Investor Members under this Section 6.9 7.6 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Operating Agreement (Chartermac)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or nor any of their its directors, partners officers, agents or officers employees shall be liable or accountable in for monetary damages or otherwise to the Company, Company or any Members or any Assignees for losses sustained, sustained or liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if any such party acted in good faith. The Managing Member shall not be in breach of any duty that the Managing Member may owe to the Members or the Company or any other Persons under this Agreement or of any duty stated or implied by law or equity provided the Managing Member, Clipper or such director, partner or officer acted acting in good faith, abides by the terms of this Agreement.
(b) The Members expressly agree acknowledge that if there the Managing Member is acting on behalf of the Company, the Members and the Managing Member’s stockholders collectively, that the Managing Member is under no obligation to consider the separate interests of the Members (including, without limitation, the tax consequences to Members or the tax consequences of some, but not all, of the Members) in deciding whether to cause the Company to take (or decline to take) any actions. In the event of a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner interests of the Managing Member’s stockholders on the one hand and the Members (other than the Managing Member) on the other, to the Members, Clipper and the Managing Member may fulfill its duties shall endeavor in good faith to resolve the conflict in a manner not adverse to either the Managing Member’s stockholders or the Members by acting (other than the best interests Managing Member); provided, that for so long as the Managing Member owns a controlling interest in the Company, any such conflict that the Managing Member, in its sole and absolute discretion, determines cannot be resolved in a manner not adverse to either the Managing Member’s stockholders or the Members (other than the Managing Member) shall be resolved in favor of Clipperthe Managing Member’s stockholders. The Managing Member shall not be liable for monetary damages for losses sustained, liabilities incurred or benefits not derived by the Members in connection with such decisions.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 3.1 hereof, the Managing Member may exercise any of the powers granted to it by under this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) Any amendment, modification or repeal of this Section 6.9 9.2 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and ’s or any of its officers’ and ’, directors’, agents’ or employees’ liability to the Company and the Members under this Section 6.9 9.2 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 claims relating to such claims matters may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Ellington Financial LLC)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties expressly acknowledge that the Managing Member is acting for the benefit of the Company, the Members and the Managing Member's shareholders collectively, that the Managing Member is under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith and has not breached its express covenants set forth in this Agreement.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Health Care Property Investors Inc)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Member expressly acknowledges that the Managing Member is acting for the benefit of the Company, the Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member's shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by the Non-Managing Member in connection with such decisions, provided that the Managing Member has acted in good faith.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Members Non-Managing Member under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bre Properties Inc /Md/)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to A. To the maximum extent permitted under the Act, the only duties that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise Member owes to the Company, any Members Member or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or other Person (including any creditor of any act Member or omission if assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. The Managing Member, Clipper or such director, partner or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the general partner Company, any Member or any other Person (including any creditor of any Member or any assignee of Membership Interest). The provisions of this Agreement shall create contractual obligations of the Managing Member only, and no such provisions shall be interpreted to create, expand or modify any fiduciary duties of the Managing Member.
B. The Non-Managing Members agree that: (i) the Managing Member is acting for the benefit of the Company, to the MembersNon-Managing Members and CLNY’s stockholders, Clipper collectively; and (ii) in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of CLNY or its stockholders, on the other hand, the Managing Member may fulfill its duties give priority to the Members by acting the best separate interests of ClipperCLNY and its stockholders (including with respect to the tax consequences to Non-Managing Members, Assignees or CLNY’s stockholders) and, in the event of such a conflict, any action or failure to act on the part of CLNY that gives priority to the separate interests of CLNY or its stockholders that does not result in a violation of the contract rights of the Non-Managing Members under this Agreement and does not violate any duty owed by the Managing Member to the Company or the Members.
C. In exercising its authority under this Agreement, the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (cor not taken) by it. Except as otherwise agreed by the Company, the Managing Member and the Company shall not have liability to a Non-Managing Member under any circumstances as a result of any income tax liability incurred by such Non-Managing Member as a result of an action (or inaction) by the Managing Member or the Company pursuant to the Managing Member’s authority under this Agreement.
D. Subject to its obligations and duties as Managing Member managing member of the Company set forth in Section 6.2 hereofthis Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
(d) To E. In performing its duties under this Agreement and the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the MembersAct, the Managing Member shall not be liable entitled to the Company or to any other Member for its good faith reliance rely on the provisions of this AgreementAgreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any Subsidiary of the Company, prepared or presented by an officer, employee or agent of the Managing Member or any agent of the Company or any such Subsidiary, or by a lawyer, certified public accountant, appraiser or other person engaged by the Company as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion. The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
F. Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (ei) to protect the ability of CLNY to continue to qualify as a REIT, (ii) for CLNY otherwise to satisfy the REIT Requirements, (iii) to avoid CLNY incurring any taxes under Code Section 857 or Code Section 4981, (iv) to protect the ability of the Company to be treated as a partnership or disregarded entity for federal income tax purposes, or (v) for any wholly owned Subsidiary of CLNY to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or disregarded entity (determined for federal income tax purposes) thereof, is expressly authorized under this Agreement, is deemed approved by all of the Non-Managing Members and does not violate any duty of the Managing Member to the Company or any other Member.
G. Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to any express indemnities given to the Company by any the Managing Member pursuant to any other written instrument, no the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited hereunder except pursuant to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or servicesSection 15.1 hereof. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to Section 15.1 hereof or any such express indemnity, no property or assets of any the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members Member(s) and arising out of, or in connection with, this Agreement.
(f) H. No manager, member, officer or agent of the Managing Member, and no director, officer or agent of CLNY shall have any duties directly to the Company or any Member. No manager, member, officer or agent of the Managing Member or any director, officer, or agent of CLNY shall be directly liable to the Company for money damages by reason of their service as such.
I. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Managing Member’s, and or its officers’ and managers, members, directors’, liability officers or agents, to the Company and the Members under this Section 6.9 7.8, as in effect immediately prior to such amendment, modification or repeal repeal, with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Colony Financial, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this Agreement, to A. To the maximum extent permitted under the Act, the only duties that Delaware law in effect from time to time permits, none of the Managing Member, Clipper or any of their directors, partners or officers shall be liable or accountable in damages or otherwise Member owes to the Company, any Members Member or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or other Person (including any creditor of any act Member or omission if Assignee of any Membership Interest), fiduciary or otherwise, are to perform its contractual obligations as expressly set forth in this Agreement consistently with the implied contractual covenant of good faith and fair dealing. The Managing Member, Clipper or such director, partner or officer acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as such, shall have no other duty, fiduciary or otherwise, to the general partner Company, any Member or any other Person (including any creditor of any Member or any Assignee of Membership Interest). The provisions of this Agreement shall create contractual obligations of the Managing Member only, and no such provisions shall be interpreted to create, expand or modify any fiduciary duties of the Managing Member.
B. The Non-Managing Members agree that: (i) the Managing Member is acting for the benefit of the Company, to the MembersNon-Managing Members and BrightSpire Capital’s stockholders, Clipper collectively; and (ii) in the event of a conflict between the interests of the Company or any Member, on the one hand, and the separate interests of BrightSpire Capital or its stockholders, on the other hand, the Managing Member may fulfill its duties give priority to the Members by acting the best separate interests of ClipperBrightSpire Capital and its stockholders (including with respect to the tax consequences to Non-Managing Members, Assignees or BrightSpire Capital’s stockholders) and, in the event of such a conflict, any action or failure to act on the part of BrightSpire Capital that gives priority to the separate interests of BrightSpire Capital or its stockholders that does not result in a violation of the contract rights of the Non-Managing Members under this Agreement and does not violate any duty owed by the Managing Member to the Company or the Members.
C. In exercising its authority under this Agreement, the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (cor not taken) by it. Except as otherwise agreed by the Company, the Managing Member and the Company shall not have liability to a Non-Managing Member under any circumstances as a result of any income tax liability incurred by such Non-Managing Member as a result of an action (or inaction) by the Managing Member or the Company pursuant to the Managing Member’s authority under this Agreement.
D. Subject to its obligations and duties as Managing Member managing member of the Company set forth in Section 6.2 hereofthis Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to agents, including the supervision and control of the Managing Member)Manager. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
(d) To E. In performing its duties under this Agreement and the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the MembersAct, the Managing Member shall not be liable entitled to the Company or to any other Member for its good faith reliance rely on the provisions of this AgreementAgreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any Subsidiary of the Company, prepared or presented by an officer, employee or agent of the Managing Member or the Manager or any agent of the Company or any such Subsidiary, or by a lawyer, certified public accountant, appraiser or other person engaged by the Company as to any matter within such person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion. The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties.
F. Notwithstanding any other provision of this Agreement or the Act, any action of the Managing Member on behalf of the Company or any decision of the Managing Member to refrain from acting on behalf of the Company, undertaken in the good faith belief that such action or omission is necessary or advisable in order (ei) to protect the ability of BrightSpire Capital to continue to qualify as a REIT, (ii) for BrightSpire Capital otherwise to satisfy the REIT Requirements, (iii) to avoid BrightSpire Capital incurring any taxes under Code Section 857 or Code Section 4981, (iv) to protect the ability of the Company to be treated as a partnership or disregarded entity for federal income tax purposes, or (v) for any wholly owned Subsidiary of BrightSpire Capital to continue to qualify as a “qualified REIT subsidiary” (within the meaning of Code Section 856(i)(2)) or disregarded entity (determined for federal income tax purposes) thereof, is expressly authorized under this Agreement, is deemed approved by all of the Non-Managing Members and does not violate any duty of the Managing Member to the Company or any other Member.
G. Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to any express indemnities given to the Company by any the Managing Member pursuant to any other written instrument, no the Managing Member shall not have any personal liability whatsoever, to the Company or to the other Members, for any action or omission taken in its capacity as the Managing Member or for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited hereunder except pursuant to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or servicesSection 15.1 hereof. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligencethe matters described in the proviso of the first sentence of Section 7.7.A, or pursuant to Section 15.1 hereof or any such express indemnity, no property or assets of any the Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members Member(s) and arising out of, or in connection with, this Agreement.
(f) H. No manager, member, officer or agent of the Managing Member, and no director, officer, employee or agent of BrightSpire Capital shall have any duties directly to the Company or any Member. No manager, member, officer or agent of the Managing Member or any director, officer or agent of BrightSpire Capital shall be directly liable to the Company or any Member for money damages by reason of their service as such.
I. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Managing Member’s, and or its officers’ and managers, members, directors’, liability officers or agents, to the Company and the Members under this Section 6.9 7.8, as in effect immediately prior to such amendment, modification or repeal repeal, with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (BrightSpire Capital, Inc.)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Members expressly agree acknowledge that if there the Managing Member is a conflict between acting for the duties owed by Clipper’s directors benefit of the Company, the Members and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member's shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is (except as otherwise provided in this Agreement, including, but not limited to, the restrictions on the Managing Member's power and authority pursuant to this Article 7) under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Non-Managing Members in connection with such decisions, provided that the Managing Member has acted in good faith.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Non-Managing Members under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Inland Real Estate Corp)
Liability of the Managing Member. (a) A. Notwithstanding anything to the contrary set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing Member, Clipper or Member nor any of their directors, partners its directors or officers shall be liable or accountable in damages or otherwise to the Company, any Members or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if the Managing Member, Clipper Member or such director, partner director or officer acted in good faith.
(b) B. The Non-Managing Member expressly acknowledges that the Managing Member is acting for the benefit of the Company, the Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member's shareholders collectively, to the Members, Clipper and that the Managing Member may fulfill its duties is (except as otherwise provided in this Agreement, including, but not limited to, the restrictions on the Managing Member's power and authority pursuant to this Article 7) under no obligation to give priority to the Members by acting the best separate interests of Clipper’s stockholdersthe Members or the Managing Member's shareholders (including, without limitation, the tax consequences to Members, Assignees or the Managing Member's shareholders) in deciding whether to cause the Company to take (or decline to take) any actions and that the Managing Member shall not be liable to the Company or to any Member for monetary damages for losses sustained, liabilities incurred, or benefits not derived by the Non-Managing Member in connection with such decisions, provided that the Managing Member has acted in good faith.
(c) C. Subject to its obligations and duties as Managing Member set forth in Section 6.2 7.1.A hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Members, the Managing Member shall not be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(f) D. Any amendment, modification or repeal of this Section 6.9 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s's, and its officers’ ' and directors’', liability to the Company and the Members Non-Managing Member under this Section 6.9 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Inland Real Estate Corp)
Liability of the Managing Member. (a) Notwithstanding anything to Except as otherwise specifically provided herein or under the contrary set forth in this AgreementAct, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing MemberMember nor its Affiliates, Clipper nor any agent, representative, director, officer or employee of any of their directorsthem, partners or officers shall be liable liable, responsible or accountable in damages or otherwise to the Company, Company or to any Members or any Assignees Member for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if performed or omitted on behalf of the Managing Member, Clipper or such director, partner or officer acted Company in good faith. In exercising its right hereunder, Managing Member shall be entitled to rely in good faith on information, opinions, reports or statements, including financial statements and other financial data provided by any attorney, accountant or other professional engaged in connection with the Company and/or Property.
(b) The Members expressly agree that if there is a conflict between Notwithstanding anything to the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, contrary in its capacity as the general partner of the Managing Memberthis Agreement, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Membersany Subsidiary, any Member, any Affiliate of any Member or any other Person, the Managing Member Member, acting under this Agreement, shall not be liable to the Company Company, any Subsidiary, any Member, any Affiliate of any Member or to any other Member Person, for a breach of fiduciary duty for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to , and the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoeverprovisions of this Agreement, to the Company extent that they restrict or to eliminate the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, duties (including fiduciary duties) and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder liability of the Managing Member otherwise existing at law or Clipper shall be liable in equity, are agreed by each Member to the Company for money damages except for (1) active replace such other duties and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation liabilities of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(fc) Any amendmentExcept as otherwise specifically provided herein or under the Act, modification the Managing Member shall not be personally liable for the return or repeal payment of this Section 6.9 all or any provision hereof portion of the Capital Contributions of or distributions to any Member (or any successor, assignee or transferee thereof), it being expressly agreed that any such return of Capital Contributions or distributions pursuant to this Agreement shall be prospective only and made solely from the assets of the Company (which assets shall not in include any way affect the limitations on right of contribution from the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.). ACTIVE 203377426v.6
Appears in 1 contract
Samples: Limited Liability Company Agreement (Rouse Properties, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything to Except as otherwise specifically provided herein or under the contrary set forth in this AgreementAct, to the maximum extent that Delaware law in effect from time to time permits, none of neither the Managing MemberMember nor its Affiliates, Clipper nor any agent, representative, director, officer or employee of any of their directorsthem, partners or officers shall be liable liable, responsible or accountable in damages or otherwise to the Company, Company or to any Members or any Assignees Member for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if performed or omitted on behalf of the Managing Member, Clipper or such director, partner or officer acted Company in good faith. In exercising its right hereunder, Managing Member shall be entitled to ACTIVE 203377524v.3 rely in good faith on information, opinions, reports or statements, including financial statements and other financial data provided by any attorney, accountant or other professional engaged in connection with the Company and/or Property.
(b) The Members expressly agree that if there is a conflict between Notwithstanding anything to the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, contrary in its capacity as the general partner of the Managing Memberthis Agreement, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it in good faith.
(d) To the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the Membersany Subsidiary, any Member, any Affiliate of any Member or any other Person, the Managing Member Member, acting under this Agreement, shall not be liable to the Company Company, any Subsidiary, any Member, any Affiliate of any Member or to any other Member Person, for a breach of fiduciary duty for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to , and the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoeverprovisions of this Agreement, to the Company extent that they restrict or to eliminate the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, duties (including fiduciary duties) and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder liability of the Managing Member otherwise existing at law or Clipper shall be liable in equity, are agreed by each Member to the Company for money damages except for (1) active replace such other duties and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation liabilities of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Managing Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreement.
(fc) Any amendmentExcept as otherwise specifically provided herein or under the Act, modification the Managing Member shall not be personally liable for the return or repeal payment of this Section 6.9 all or any provision hereof portion of the Capital Contributions of or distributions to any Member (or any successor, assignee or transferee thereof), it being expressly agreed that any such return of Capital Contributions or distributions pursuant to this Agreement shall be prospective only and made solely from the assets of the Company (which assets shall not in include any way affect the limitations on right of contribution from the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted).
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Samples: Limited Liability Company Agreement (Rouse Properties, Inc.)
Liability of the Managing Member. (a) Notwithstanding anything To the maximum extent permitted under the Act, the only duties that the Managing Member owes to the contrary Company or any Member are to perform its contractual obligations as expressly set forth in this Agreement, to the maximum extent that Delaware law in effect from time to time permits, none of the . The Managing Member, Clipper in its capacity as such, shall have no other duty, fiduciary or any of their directorsotherwise, partners or officers shall be liable or accountable in damages or otherwise to the Company, any Members Member or any Assignees for losses sustained, liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or other Person (including any creditor of any act Member or omission if the Managing Member, Clipper or such director, partner or officer acted in good faithany assignee of a Membership Interest).
(b) The Members expressly agree that if there that: (i) the Managing Member is acting for the benefit of the Company and the Members, collectively; and (ii) in the event of a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders interests of the Company or any Member, on the one hand, and the duties owed by Clipper, in its capacity as the general partner separate interests of the Managing MemberInvestor or its stockholders, to on the Membersother hand, Clipper and the Managing Member may fulfill its duties give priority to the Members by acting the best separate interests of Clipperthe Investor and its stockholders (including, without limitation, with respect to the tax consequences to Members, Assignees or the Investor’s stockholders) and, in the event of such a conflict, any action or failure to act on the part of the Managing Member that gives priority to the separate interests of the Investor or its stockholders that does not result in a violation of the contract rights of the Members under this Agreement does not violate any duty owed by the Managing Member to the Company or the Members.
(c) In exercising its authority under this Agreement, the Managing Member may, but shall be under no obligation to, take into account the tax consequences to any Member of any action taken (or not taken) by it. Except as otherwise agreed by the Company, the Managing Member and the Company shall not have liability to a Member under any circumstances as a result of any income tax liability incurred by such Member as a result of an action (or inaction) by the Managing Member or the Company pursuant to the Managing Member’s authority under this Agreement, other than the obligation of the Company to make tax distributions under Section 5.2.
(d) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereofthis Agreement and applicable law, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees employees, Officers or agents (subject to the supervision and control of the Managing Member)agents. The Managing Member shall not be responsible to the Company or any Member for any misconduct or negligence on the part of any such employee or agent appointed by it in good faith.
(de) To In performing its duties under this Agreement and the extent that, at law or in equity, the Managing Member has duties (including fiduciary duties) and liabilities relating thereto to the Company or the MembersAct, the Managing Member shall not be entitled to rely on the provisions of this Agreement and on any information, opinion, report or statement, including any financial statement or other financial data or the records or books of account of the Company or any subsidiary of the Company, prepared or presented by an Officer, employee or agent of the Managing Member or any agent of the Company or any such subsidiary, or by a lawyer, financial advisor, certified public accountant or other outside advisor engaged by the Company as to any matter within such Person’s professional or expert competence, and any act taken or omitted to be taken in reliance upon any such information, opinion, report or statement as to matters that the Managing Member reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such opinion. The Managing Member may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(f) No manager, member, director, officer, employee, agent or representative of the Managing Member (in their respective capacities as such) shall have any duties to the Company or any Member. No manager, member, director, officer, employee, agent or representative of the Managing Member shall be liable to the Company or to any other Member for its good faith reliance on the provisions of this Agreement.
(e) Notwithstanding anything herein to the contrary, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company or to the other Members, for the debts or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt reason of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreementtheir service as such.
(f) Any amendment, modification or repeal of this Section 6.9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
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Liability of the Managing Member. (a) Notwithstanding anything to the contrary set forth in this AgreementSecond Amendment, to the maximum fullest extent that Delaware law in effect from time to time permitspermitted by law, none of the Officers and the Managing Member, Clipper or any of their directors, partners or Member and its officers and directors shall not be liable or accountable in for monetary damages or otherwise to the Company, any Members or any Assignees for losses sustained, sustained or liabilities incurred or benefits not derived as a result of errors in judgment or mistakes of fact or law or of any act or omission if unless such Person acted in bad faith or breached an explicit term of this Second Amendment and the act or omission was material to the matter giving rise to the loss, liability or benefit not derived.
(b) The SCI Members and the CI Members expressly acknowledge that the Managing MemberMember is under no obligation (fiduciary or otherwise) to consider the separate interests of the SCI Members and the CI Members in deciding whether to cause the Company to take (or decline to take) any actions, Clipper and that the Managing Member shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by SCI Members or CI Members in connection with such directordecisions, partner or officer provided that the Managing Member has acted in good faith.
(b) The Members expressly agree that if there is a conflict between the duties owed by Clipper’s directors and officers to Clipper and its stockholders and the duties owed by Clipper, in its capacity as the general partner of the Managing Member, to the Members, Clipper and the Managing Member may fulfill its duties to the Members by acting the best interests of Clipper’s stockholders.
(c) Subject to its obligations and duties as Managing Member set forth in Section 6.2 hereof, the Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its employees or agents (subject to the supervision and control of the Managing Member). The Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by it the Managing Member in good faith.
(d) To the fullest extent thatpermitted by law and notwithstanding any other provision of this Second Amendment, at law whenever this Second Amendment or any other agreement contemplated hereby provides that the Managing Member or any of its Affiliates is permitted or required to make a decision (i) in equityits "discretion" or under a grant of similar authority or latitude, the Managing Member has duties or such Affiliate shall be entitled to consider such interests and factors as it desires and shall have no duty or obligation to give any consideration to any interest of or factors affecting any Member, or (including fiduciary dutiesii) and liabilities relating thereto to the Company in its "good faith" or the Membersunder another express standard, the Managing Member or such Affiliate shall act under such express standard and shall not be liable to the Company or subject to any other Member for its good faith reliance on the provisions of or different standards imposed by this Agreement.
(e) Notwithstanding anything herein to the contrarySecond Amendment, except for fraud, willful misconduct or gross negligence, or pursuant to any express indemnities given to the Company by any Member pursuant to any other written instrument, no Member shall have any personal liability whatsoever, to the Company agreement contemplated hereby or to the other Members, for the debts applicable law or liabilities of the Company or the Company’s obligations hereunder, and the full recourse of the other Members shall be limited to the interest of such Members in the Company. To the fullest extent permitted by law, no officer, director, partner or stockholder of the Managing Member or Clipper shall be liable to the Company for money damages except for (1) active and deliberate dishonesty established by a nonappealable final judgment or (2) actual receipt of an improper benefit or profit in money, property or services. Without limitation of the foregoing, and except for fraud, willful misconduct or gross negligence, or pursuant to any such express indemnity, no property or assets of any Member, other than its interest in the Company, shall be subject to levy, execution or other enforcement procedures for the satisfaction of any judgment (or other judicial process) in favor of any other Members and arising out of, or in connection with, this Agreementequitable principles.
(f) Any amendment, modification or repeal of this Section 6.9 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Managing Member’s, and its officers’ and directors’, liability to the Company and the Members under this Section 6.9 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
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