Limitation of Liability of Managers. (a) Except as otherwise provided herein or in an agreement entered into by such Person and the Company, neither any Manager nor any of the Managers’ Affiliates or Managers’ officers, employees or other agents shall be liable to the Company, to any Member that is not a Manager or to any other Person bound by this Agreement for any act or omission performed or omitted by any Manager in its capacity as a managing member of the Company pursuant to authority granted to the Managers by this Agreement; provided however that, except as otherwise provided herein, such limitation of liability shall not apply to the extent the act or omission was attributable to any Manager’s willful misconduct or knowing violation of Law or for any past, present or future material breaches of any representations, warranties or covenants by any Manager or its Affiliates contained herein. The Managers may exercise any of the powers granted to them by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and shall not be responsible for any misconduct or negligence on the part of any such agent (so long as such agent was selected in good faith and with reasonable care). Any Manager shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, and any act of or failure to act by any Manager in good faith reliance on such advice shall in no event subject any Manager to liability to the Company or any Member that is not a Manager.
Limitation of Liability of Managers. In any proceeding brought by or in the right of the Company or brought by or on behalf of the Member, a Manager (in his capacity as a Manager) or any of its Affiliates shall not be liable to the Company or its Member for any monetary damages arising out of any transaction, occurrence or course of conduct, unless in such proceeding the Manager or any of its Affiliates was adjudged to have engaged in willful misconduct or a knowing violation of the criminal law.
Limitation of Liability of Managers. No Manager shall be obligated personally for any debt, obligation or liability of the LLC or of any Member, whether arising in contract, tort or otherwise, solely by reason of being or acting as Manager of the LLC. A Manager, solely in his, her or its capacity as a Manager, shall not be personally liable to the LLC or the Members for monetary damages for breach of fiduciary duty as a Manager, to the fullest extent permitted by applicable law, except for liability (a) for any breach of such Manager’s duty of loyalty to the LLC or the Members, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or (c) for any transaction from which such Manager derived any improper personal benefit. The LLC renounces, to the fullest extent permitted by law, any interest or expectancy of the LLC in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “Excluded Opportunity” is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into the possession of, (i) any Manager who is not an employee of the LLC or any of its subsidiaries or (ii) any holder of Preferred Shares or any partner, member, director, stockholder, employee or agent of any such holder, other than someone who is an employee of the LLC or any of its subsidiaries (collectively, “Covered Persons”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a Manager.
Limitation of Liability of Managers. No Manager shall be obligated personally for any debt, obligation or liability of the Company or of any Member, whether arising in contract, tort or otherwise, by reason of being or acting as Manager of the Company. No Manager shall be personally liable to the Company or its Members for any action undertaken or omitted in good faith reliance upon the provisions of this Agreement unless the acts or omissions of the Manager were not in good faith or involved gross negligence or intentional misconduct; provided, that, subject to this Section 3.11, each Manager shall owe, and shall act in a manner consistent with fiduciary duties to the Company and its Members of the nature, and to the same extent, as those owed by Managers of a Delaware corporation to such corporation and its stockholders. Any Person alleging any act or omission as not taken or omitted in good faith shall have the burden of proving by a preponderance of the evidence the absence of good faith.
Limitation of Liability of Managers. No Manager shall be obligated personally for any debt, obligation or liability of the LLC or of any Member, whether arising in contract, tort or otherwise, solely by reason of being or acting as Manager of the LLC. A Manager, solely in his, her or its capacity as a Manager, shall not be personally liable to the LLC or the Members for monetary damages for breach of fiduciary duty as a Manager, to the fullest extent permitted by applicable law, except for liability (a) for any breach of such Manager’s duty of loyalty to the LLC or the Members, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law or (c) for any transaction from which such Manager derived any improper personal benefit. The LLC renounces, to the fullest extent permitted by law, any interest or expectancy of the LLC in, or in being offered an opportunity to participate in, any Excluded Opportunity. An “
Limitation of Liability of Managers. Neither the Manager nor any Officer shall be liable for the return of any contribution of capital of the Member or for any profits thereon, and any return of capital and profits shall be made, if at all, solely from the assets and business of the Company. Except as otherwise provided herein, neither the Manager nor any Officer shall be liable to the Company or the Member for any act or omission in connection with the business or affairs of the Company, including without limitation any breach of fiduciary duty as a Manager or Officer, any mistake of judgment, and any business decision (including any decision regarding the timing of any acquisition or disposition of any Property), so long as the Manager or Officer, as applicable, acted in good faith on behalf of the Company and in a manner reasonably believed by such Manager or Officer to be within the scope of authority under this Agreement and in the best interests of the Company, unless such act or omission constitutes gross negligence, intentional misconduct, fraud, or a knowing violation of law.
Limitation of Liability of Managers. No Manager shall be obligated personally for any debt, obligation or liability of the LLC or of any Member, whether arising in contract, tort or otherwise, solely by reason of being or acting as a Manager of the LLC. No Manager shall be personally liable to the LLC or to its Members for acting in good faith reliance upon the provisions of this Agreement, or for breach of any fiduciary or other duty that does not involve (i) a breach of the duty of loyalty to the LLC or its Members, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) a transaction from which the Manager derived an improper personal benefit.
Limitation of Liability of Managers. Managers shall not be liable, responsible, or accountable in damages or otherwise to the Company, to the Members, or to the other Managers for any action taken or failure to act on behalf of the Company, unless such action or omission was performed or omitted in bad faith or constituted wanton and willful misconduct.
Limitation of Liability of Managers. The Managers shall not be obligated personally for any debt, obligation or liability of the Company or of the Sole Member, whether arising in contract, tort or otherwise, solely by reason of being or acting as a Manager of the
Limitation of Liability of Managers. Notwithstanding anything to the contrary, Section 5.5(c) will no longer apply to any Manager if the SB Member Transfers any Units, except for (i) Transfers of any Units to any new Members of the Company (for the avoidance of doubt, not including any new Members admitted pursuant to an Exempt Transfer) who are approved and admitted pursuant to Section 6.3(b)(xii), (ii) any Permitted Syndication as provided in Section 9.1(c) or (iii) Exempt Transfers as provided in Section 9.1(d) (the date of such Transfer other than those expressly contemplated by the foregoing clauses (i), (ii) and (iii) of this Section 5.5(d), the “Fiduciary Duty Fallaway Date”). From and after the Fiduciary Duty Fallaway Date, notwithstanding any duty otherwise existing at law or in equity, to the fullest extent permitted by applicable Law, including, for the avoidance of doubt, Section 18-1101(c) of the Delaware Act, and except as expressly contemplated by this Agreement or any other agreement entered into between a Manager and any Member or the Company or any of its Subsidiaries, no Manager shall have any duty (including any fiduciary duty) in such capacity as Manager otherwise applicable at law or in equity to the Company, any other Manager, any Member or any other Person with respect to or in connection with the Company or the Company’s business or affairs. It is the intent and agreement of the Parties that, after the Fiduciary Duty Fallaway Date, all fiduciary duties be, and hereby are, eliminated and no fiduciary duties shall apply to any action or omission taken by any Manager (in such Manager’s capacity as such) in connection with the Company; provided that (A) the foregoing shall not eliminate the obligation of the Managers to act in compliance with the express terms of this Agreement and (B) the foregoing shall not be deemed to eliminate the implied contractual covenant of good faith and fair dealing of the Managers. Notwithstanding anything to the contrary contained herein, each Member agrees not to file a lawsuit or other legal claim or charge to assert against any Manager any claim regarding any breach of any duty (including any fiduciary duty) in such Manager’s capacity as such or challenging the provisions of this Section 5.5(d)).
