Common use of Limitation on Liability; Indemnification Clause in Contracts

Limitation on Liability; Indemnification. A Manager or Member of the Company shall not be personally liable to the Company or to its (other) Members for money damages for any action taken, or any failure to take action, as a Member or Manager except for liability for any of the following: (i) the bad faith violation of the covenant of good faith and fair dealing; (ii) a financial benefit received by the Member or Manager to which the Member or Manager was not entitled; (iii) a breach of duty under § 18-607 of the Delaware Act (improper distributions); (iv) an intentional infliction of harm on the Company or a Member; or (v) an intentional violation of criminal law. If the Delaware Act or other applicable law is hereafter amended to authorize the further elimination or limitation of the liability of Members or Managers, then the liability of a Member or Manager of the Company, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the extent of such amendment, automatically and without any further action, to the maximum extent permitted by law. Any repeal or modification of this provision by the Members of the Company shall be prospective only, and shall not adversely affect any limitation on the personal liability, or any other right or protection, of a Member or Manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification. Each Person, who is or was a Manager or officer of the Company who was or is made a party to or a witness in, or is threatened to be made a party to, or a witness in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such Person (i) is or was a Manager or officer of the Company; or (ii) while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise, shall be indemnified and held harmless by the Company with respect to such claim, action, suit or proceeding to the maximum extent the Company may indemnify such Person under Section 18-108, and other provisions of, the Delaware Act, as the same now exists or as it may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Company to provide broader indemnification than said law empowered the Company to provide prior to such amendment or change), including, without limitation, against reasonable costs and expenses (including attorneys’ fees), judgments, fines, penalties (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably incurred by such Person in connection with such claim, action, suit or proceeding or any appeal thereof; provided, however, that except with respect to proceedings seeking to enforce indemnification under this Article, entitlement to such indemnification shall be conditioned upon the Company being afforded the opportunity to participate directly on behalf of such Person in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other non-adjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditioned upon the prior approval by the Company of the proposed settlement or other non-adjudicated disposition. Approval or disapproval by the Company of any proposed settlement or other non-adjudicated disposition shall not subject the Company to any liability to, or require indemnification or reimbursement of, any Person who the Company would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Company of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon delivery to the Company of: (i) a written undertaking by or on behalf of the Person claiming indemnification under this Article to repay all amounts so advanced if it shall ultimately be determined that such Person is not entitled to be indemnified under this Article or otherwise, and (ii) a written affirmation of such Person’s good faith belief that such Person has met the applicable standard of conduct necessary to require indemnification by the Company pursuant to this Article or otherwise. This Article shall be deemed a contract between the Company and each Person who is a Manager or officer of the Company at any time while this Article and the relevant provisions of the Delaware Act are in effect, and any repeal or modification of the Delaware Act or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based, in whole or in part, upon any such state of facts. The Company may, by action of the Managers, provide indemnification to such of the employees and agents of the Company to such extent and to such effect as the Managers shall determine to be appropriate and as otherwise authorized by the Delaware Act, as the same now exists or as it may hereafter be amended. Except only as may be limited by the affirmative requirements of applicable law, the indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Person seeking indemnification or advancement of expenses may have, hereafter acquire or become entitled to under any statute, provision of the Certificate, this Agreement or another agreement, vote of the Managers or otherwise. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each Person who is now serving or who shall hereafter serve as a Manager or officer of the Company shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a Person who has ceased to be a Manager or officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators, and successors of such a Person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Manager and officer of the Company to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated. Notwithstanding anything in this Article to the contrary, the Company shall (except with respect to proceedings initiated to enforce rights of indemnification to which a Person is entitled under this Article or otherwise) indemnify a Person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such Person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Managers. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Manager officer, employee or agent of the Company, or while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise, against any liability asserted against such Person and incurred by such Person in such capacity, or arising out of such Person’s status as such, and whether or not the Company would have the power to indemnify such Person against such liability or eliminate or limit the Person’s liability to the Company for the conduct giving rise to the liability under the provisions of this Article or the Delaware Act. The Company may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company’s obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company’s obligation to such Person to make indemnification and pay expenses pursuant to this Article.

Limitation on Liability; Indemnification. A Manager (a) Notwithstanding anything to the contrary set forth in this Agreement, no Director or Member of the Company officer shall not be personally liable either to the Company or to any Member for monetary damages for breach of fiduciary duty as Director or officer, except for liability (i) for any breach of the Director’s or officer’s duty of loyalty to the Company or its Members, (otherii) Members for money damages acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law, (iii) for any transaction from which the Director or officer shall have derived an improper personal benefit or (iv) for any action takenwhich would constitute a violation of Section 18 607 of the Act. Neither amendment nor repeal of this paragraph (a) nor the adoption of any provision of this Agreement inconsistent with this paragraph (a) shall eliminate or reduce the effect of this paragraph (a) in respect of any matter occurring, or any failure to take cause of action, as a Member suit or Manager except claim that, but for liability for any this paragraph (a) of the following: (i) the bad faith violation of the covenant of good faith and fair dealing; (ii) a financial benefit received by the Member this Section 5.03, would accrue or Manager arise, prior to which the Member or Manager was not entitled; (iii) a breach of duty under § 18-607 of the Delaware Act (improper distributions); (iv) an intentional infliction of harm on the Company or a Member; or (v) an intentional violation of criminal law. If the Delaware Act or other applicable law is hereafter amended to authorize the further elimination or limitation of the liability of Members or Managers, then the liability of a Member or Manager of the Company, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the extent of such amendment, automatically and without any further action, to the maximum extent permitted by law. Any repeal or modification adoption of this provision by the Members of the an inconsistent provision. (b) The Company shall be prospective only, and shall not adversely affect indemnify any limitation on the personal liability, or any other right or protection, of a Member or Manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification. Each Person, who is or was a Manager Director or officer of the Company who is or was or is made a party to or a witness in, or is threatened to be made a party to, or a witness testifies in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informalin nature, by reason of the fact that such Person (i) person is or was a Manager or officer of the Company; or (ii) while a Manager Director or officer of the Company, or is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan plan, trust or other entity or enterprise, shall be indemnified and held harmless by the Company with respect to such claim, action, suit or proceeding to the maximum extent the Company may indemnify such Person under Section 18-108, and other provisions of, the Delaware Act, as the same now exists or as it may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Company to provide broader indemnification than said law empowered the Company to provide prior to such amendment or change), including, without limitation, against reasonable costs and expenses (including attorneys’ fees), judgments, fines, penalties (including an excise tax assessed with respect to an employee benefit plan) fines and amounts paid in settlement actually and reasonably incurred by such Person person in connection with such claim, action, suit or proceeding or any appeal thereof; providedto the fullest extent permitted by the Act, however, that except with respect to proceedings seeking to enforce indemnification under this Article, entitlement to such indemnification shall be conditioned upon and the Company being afforded may enter into agreements with any such person for the opportunity to participate directly on behalf purpose of providing such Person indemnification. Expenses incurred by any Director or officer of the Company in defending or testifying in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other non-adjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditioned upon the prior approval paid by the Company of the proposed settlement or other non-adjudicated disposition. Approval or disapproval by the Company of any proposed settlement or other non-adjudicated disposition shall not subject the Company to any liability to, or require indemnification or reimbursement of, any Person who the Company would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Company of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon delivery to the Company of: (i) a written receipt of an undertaking by or on behalf of such Director or officer of the Person claiming indemnification under this Article Company to repay all amounts so advanced such amount if it shall ultimately be determined that such Person Director or officer of the Company is not entitled to be indemnified under this Article or otherwise, and (ii) a written affirmation of such Person’s good faith belief that such Person has met the applicable standard of conduct necessary to require indemnification by the Company pursuant to against such expenses as authorized by this Article or otherwise. This Article shall be deemed a contract between Section 5.03, and the Company and each Person who is a Manager may enter into agreements with such persons for the purpose of providing for such advances. (c) The Company shall have the power to indemnify any employee or officer agent of the Company at any time while this Article and the relevant provisions of the Delaware Act are in effect, and any repeal or modification of the Delaware Act or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based, in whole or in part, upon any such state of facts. The Company may, by action of the Managers, provide indemnification to such of the employees and agents of the Company to such extent and to such effect as the Managers shall determine to be appropriate and as otherwise authorized by the Delaware Act, as the same now exists or as it may hereafter be amended. Except only as may be limited by the affirmative requirements of applicable law, the indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Person seeking indemnification or advancement of expenses may have, hereafter acquire or become entitled to under any statute, provision of the Certificate, this Agreement or another agreement, vote of the Managers or otherwise. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each Person who is now serving or who shall hereafter serve as a Manager or officer of the Company shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a Person who has ceased to be a Manager or officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators, and successors of such a Person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Manager and officer of the Company to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated. Notwithstanding anything in this Article to the contrary, the Company shall (except with respect to proceedings initiated to enforce rights of indemnification to which a Person is entitled under this Article or otherwise) indemnify a Person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such Person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Managers. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Manager officerparty or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was an employee or agent of the Company, or while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trustemployee benefit plan, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the fullest extent permitted by the Act, and the Company may enter into agreements with any such person for the purpose of providing such indemnification. Expenses incurred by an employee or agent in defending or testifying in such action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such employee or agent to repay such amount if it shall ultimately be determined that such employee or agent is not entitled to be indemnified by the Company against such expenses as authorized by this Section 5.03, and the Company may enter into agreements with such persons for the purpose of providing for such advances. (d) The indemnification permitted by this Section 5.03 shall not be deemed exclusive of any other rights to which any person may be entitled under any agreement, affirmative vote of Members holding not less than a majority of the capital interests of the Company or disinterested Directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding an office, and shall continue as to a person who has ceased to be a Director, officer of the Company, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. (e) The Company shall have power to purchase and maintain insurance on behalf of any person who is or was a Director, officer of the Company, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another company, partnership, joint venture, employee benefit plan plan, trust or other entity or enterprise, enterprise against any liability asserted against such Person person and incurred by such Person person in any such capacity, or arising out of such Personperson’s status as such, and whether or not the Company would have the power to indemnify such Person person against such liability or eliminate or limit the Person’s liability to the Company for the conduct giving rise to the liability under the provisions of this Article Section 5.03 or the Delaware Act. The Company may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company’s obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company’s obligation to such Person to make indemnification and pay expenses pursuant to this Articleotherwise.

Limitation on Liability; Indemnification. A Manager (a) Notwithstanding anything to the contrary set forth in this Agreement, no Director or Member of the Company officer shall not be personally liable either to the Company or to any Member for monetary damages for breach of fiduciary duty as Director or officer, except for liability (i) for any breach of the Director’s or officer’s duty of loyalty to the Company or its Members, (otherii) Members for money damages acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law, (iii) for any transaction from which the Director or officer shall have derived an improper personal benefit or (iv) for any action taken, or any failure to take action, as which would constitute a Member or Manager except for liability for any of the following: (i) the bad faith violation of the covenant of good faith and fair dealing; (ii) a financial benefit received by the Member or Manager to which the Member or Manager was not entitled; (iii) a breach of duty under § Section 18-607 of the Delaware Act Act. Neither amendment nor repeal of this paragraph (improper distributions); a) nor the adoption of any provision of this Agreement inconsistent with this paragraph (iva) an intentional infliction shall eliminate or reduce the effect of harm on the Company this paragraph (a) in respect of any matter occurring, or a Member; any cause of action, suit or claim that, but for this paragraph (va) an intentional violation of criminal law. If the Delaware Act this Section 5.03, would accrue or other applicable law is hereafter amended arise, prior to authorize the further elimination or limitation of the liability of Members or Managers, then the liability of a Member or Manager of the Company, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the extent of such amendment, automatically and without any further action, to the maximum extent permitted by law. Any repeal or modification adoption of this provision by the Members of the an inconsistent provision. (b) The Company shall be prospective only, and shall not adversely affect indemnify any limitation on the personal liability, or any other right or protection, of a Member or Manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification. Each Person, who is or was a Manager Director or officer of the Company who is or was or is made a party to or a witness in, or is threatened to be made a party to, or a witness testifies in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informalin nature, by reason of the fact that such Person (i) person is or was a Manager or officer of the Company; or (ii) while a Manager Director or officer of the Company, or is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan plan, trust or other entity or enterprise, shall be indemnified and held harmless by the Company with respect to such claim, action, suit or proceeding to the maximum extent the Company may indemnify such Person under Section 18-108, and other provisions of, the Delaware Act, as the same now exists or as it may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Company to provide broader indemnification than said law empowered the Company to provide prior to such amendment or change), including, without limitation, against reasonable costs and expenses (including attorneys’ fees), judgments, fines, penalties (including an excise tax assessed with respect to an employee benefit plan) fines and amounts paid in settlement actually and reasonably incurred by such Person person in connection with such claim, action, suit or proceeding or any appeal thereof; providedto the fullest extent permitted by the Act, however, that except with respect to proceedings seeking to enforce indemnification under this Article, entitlement to such indemnification shall be conditioned upon and the Company being afforded may enter into agreements with any such person for the opportunity to participate directly on behalf purpose of providing such Person indemnification. Expenses incurred by any Director or officer of the Company in defending or testifying in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other non-adjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditioned upon the prior approval paid by the Company of the proposed settlement or other non-adjudicated disposition. Approval or disapproval by the Company of any proposed settlement or other non-adjudicated disposition shall not subject the Company to any liability to, or require indemnification or reimbursement of, any Person who the Company would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Company of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon delivery to the Company of: (i) a written receipt of an undertaking by or on behalf of such Director or officer of the Person claiming indemnification under this Article Company to repay all amounts so advanced such amount if it shall ultimately be determined that such Person Director or officer of the Company is not entitled to be indemnified under this Article or otherwise, and (ii) a written affirmation of such Person’s good faith belief that such Person has met the applicable standard of conduct necessary to require indemnification by the Company pursuant to against such expenses as authorized by this Article or otherwise. This Article shall be deemed a contract between Section 5.03, and the Company and each Person who is a Manager may enter into agreements with such persons for the purpose of providing for such advances. (c) The Company shall have the power to indemnify any employee or officer agent of the Company at any time while this Article and the relevant provisions of the Delaware Act are in effect, and any repeal or modification of the Delaware Act or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based, in whole or in part, upon any such state of facts. The Company may, by action of the Managers, provide indemnification to such of the employees and agents of the Company to such extent and to such effect as the Managers shall determine to be appropriate and as otherwise authorized by the Delaware Act, as the same now exists or as it may hereafter be amended. Except only as may be limited by the affirmative requirements of applicable law, the indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Person seeking indemnification or advancement of expenses may have, hereafter acquire or become entitled to under any statute, provision of the Certificate, this Agreement or another agreement, vote of the Managers or otherwise. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each Person who is now serving or who shall hereafter serve as a Manager or officer of the Company shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a Person who has ceased to be a Manager or officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators, and successors of such a Person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Manager and officer of the Company to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated. Notwithstanding anything in this Article to the contrary, the Company shall (except with respect to proceedings initiated to enforce rights of indemnification to which a Person is entitled under this Article or otherwise) indemnify a Person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such Person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Managers. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Manager officerparty or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was an employee or agent of the Company, or while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trustemployee benefit plan, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the fullest extent permitted by the Act, and the Company may enter into agreements with any such person for the purpose of providing such indemnification. Expenses incurred by an employee or agent in defending or testifying in such action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such employee or agent to repay such amount if it shall ultimately be determined that such employee or agent is not entitled to be indemnified by the Company against such expenses as authorized by this Section 5.03, and the Company may enter into agreements with such persons for the purpose of providing for such advances. (d) The indemnification permitted by this Section 5.03 shall not be deemed exclusive of any other rights to which any person may be entitled under any agreement, affirmative vote of Members holding not less than a majority of the capital interests of the Company or disinterested Directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding an office, and shall continue as to a person who has ceased to be a Director, officer of the Company, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. (e) The Company shall have power to purchase and maintain insurance on behalf of any person who is or was a Director, officer of the Company, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another company, partnership, joint venture, employee benefit plan plan, trust or other entity or enterprise, enterprise against any liability asserted against such Person person and incurred by such Person person in any such capacity, or arising out of such Personperson’s status as such, and whether or not the Company would have the power to indemnify such Person person against such liability or eliminate or limit the Person’s liability to the Company for the conduct giving rise to the liability under the provisions of this Article Section 5.03 or the Delaware Act. The Company may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company’s obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company’s obligation to such Person to make indemnification and pay expenses pursuant to this Articleotherwise.

Limitation on Liability; Indemnification. A Manager (a) Notwithstanding anything to the contrary set forth in this Agreement, no Director or Member of the Company officer shall not be personally liable either to the Company or to any Member for monetary damages for breach of fiduciary duty as Director or officer, except for liability (i) for any breach of the Director's or officer’s duty of loyalty to the Company or its Members, (otherii) Members for money damages acts or omissions which are not in good faith or which involve intentional misconduct or knowing violation of the law, (iii) for any transaction from which the Director or officer shall have derived an improper personal benefit or (iv) for any action taken, or any failure to take action, as which would constitute a Member or Manager except for liability for any of the following: (i) the bad faith violation of the covenant of good faith and fair dealing; (ii) a financial benefit received by the Member or Manager to which the Member or Manager was not entitled; (iii) a breach of duty under § Section 18-607 of the Delaware Act Act. Neither amendment nor repeal of this paragraph (improper distributions); a) nor the adoption of any provision of this Agreement inconsistent with this paragraph (iva) an intentional infliction shall eliminate or reduce the effect of harm on the Company this paragraph (a) in respect of any matter occurring, or a Member; any cause of action, suit or claim that, but for this paragraph (va) an intentional violation of criminal law. If the Delaware Act this Section 5.03, would accrue or other applicable law is hereafter amended arise, prior to authorize the further elimination or limitation of the liability of Members or Managers, then the liability of a Member or Manager of the Company, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the extent of such amendment, automatically and without any further action, to the maximum extent permitted by law. Any repeal or modification adoption of this provision by the Members of the an inconsistent provision. (b) The Company shall be prospective only, and shall not adversely affect indemnify any limitation on the personal liability, or any other right or protection, of a Member or Manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification. Each Person, who is or was a Manager Director or officer of the Company who is or was or is made a party to or a witness in, or is threatened to be made a party to, or a witness testifies in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informalin nature, by reason of the fact that such Person (i) person is or was a Manager or officer of the Company; or (ii) while a Manager Director or officer of the Company, or is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan plan, trust or other entity or enterprise, shall be indemnified and held harmless by the Company with respect to such claim, action, suit or proceeding to the maximum extent the Company may indemnify such Person under Section 18-108, and other provisions of, the Delaware Act, as the same now exists or as it may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Company to provide broader indemnification than said law empowered the Company to provide prior to such amendment or change), including, without limitation, against reasonable costs and expenses (including attorneys’ ' fees), judgments, fines, penalties (including an excise tax assessed with respect to an employee benefit plan) fines and amounts paid in settlement actually and reasonably incurred by such Person person in connection with such claim, action, suit or proceeding or any appeal thereof; providedto the fullest extent permitted by the Act, however, that except with respect to proceedings seeking to enforce indemnification under this Article, entitlement to such indemnification shall be conditioned upon and the Company being afforded may enter into agreements with any such person for the opportunity to participate directly on behalf purpose of providing such Person indemnification. Expenses incurred by any Director or officer of the Company in defending or testifying in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other non-adjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditioned upon the prior approval paid by the Company of the proposed settlement or other non-adjudicated disposition. Approval or disapproval by the Company of any proposed settlement or other non-adjudicated disposition shall not subject the Company to any liability to, or require indemnification or reimbursement of, any Person who the Company would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Company of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon delivery to the Company of: (i) a written receipt of an undertaking by or on behalf of such Director or officer of the Person claiming indemnification under this Article Company to repay all amounts so advanced such amount if it shall ultimately be determined that such Person Director or officer of the Company is not entitled to be indemnified under this Article or otherwise, and (ii) a written affirmation of such Person’s good faith belief that such Person has met the applicable standard of conduct necessary to require indemnification by the Company pursuant to against such expenses as authorized by this Article or otherwise. This Article shall be deemed a contract between Section 5.03, and the Company and each Person who is a Manager may enter into agreements with such persons for the purpose of providing for such advances. (c) The Company shall have the power to indemnify any employee or officer agent of the Company at any time while this Article and the relevant provisions of the Delaware Act are in effect, and any repeal or modification of the Delaware Act or of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based, in whole or in part, upon any such state of facts. The Company may, by action of the Managers, provide indemnification to such of the employees and agents of the Company to such extent and to such effect as the Managers shall determine to be appropriate and as otherwise authorized by the Delaware Act, as the same now exists or as it may hereafter be amended. Except only as may be limited by the affirmative requirements of applicable law, the indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Person seeking indemnification or advancement of expenses may have, hereafter acquire or become entitled to under any statute, provision of the Certificate, this Agreement or another agreement, vote of the Managers or otherwise. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each Person who is now serving or who shall hereafter serve as a Manager or officer of the Company shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a Person who has ceased to be a Manager or officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators, and successors of such a Person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Manager and officer of the Company to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated. Notwithstanding anything in this Article to the contrary, the Company shall (except with respect to proceedings initiated to enforce rights of indemnification to which a Person is entitled under this Article or otherwise) indemnify a Person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such Person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Managers. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Manager officerparty or is threatened to be made a party to, or testifies in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative in nature, by reason of the fact that such person is or was an employee or agent of the Company, or while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trustemployee benefit plan, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding to the fullest extent permitted by the Act, and the Company may enter into agreements with any such person for the purpose of providing such indemnification. Expenses incurred by an employee or agent in defending or testifying in such action, suit or proceeding may be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such employee or agent to repay such amount if it shall ultimately be determined that such employee or agent is not entitled to be indemnified by the Company against such expenses as authorized by this Section 5.03, and the Company may enter into agreements with such persons for the purpose of providing for such advances. (d) The indemnification permitted by this Section 5.03 shall not be deemed exclusive of any other rights to which any person may be entitled under any agreement, affirmative vote of Members holding not less than a majority of the capital interests of the Company or disinterested Directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding an office, and shall continue as to a person who has ceased to be a Director, officer of the Company, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. (e) The Company shall have power to purchase and maintain insurance on behalf of any person who is or was a Director, officer of the Company, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another company, partnership, joint venture, employee benefit plan plan, trust or other entity or enterprise, enterprise against any liability asserted against such Person person and incurred by such Person person in any such capacity, or arising out of such Person’s person's status as such, and whether or not the Company would have the power to indemnify such Person person against such liability or eliminate or limit the Person’s liability to the Company for the conduct giving rise to the liability under the provisions of this Article Section 5.03 or the Delaware Act. The Company may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company’s obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company’s obligation to such Person to make indemnification and pay expenses pursuant to this Articleotherwise.

Limitation on Liability; Indemnification. A Manager or The Administrative Member of the Company shall not be personally liable liable, responsible or accountable, in damages or otherwise, to the Company or to its (other) Members for money damages any Member for any action takenact or omission by any such Administrative Member performed in good faith pursuant to the authority granted to such Administrative Member by this Agreement or in accordance with its provisions, or any failure and in a manner reasonably believed by such Administrative Member to take action, as a Member or Manager except for liability for any be within the scope of the following: (i) authority granted to such Administrative Member and in the bad faith violation of the covenant of good faith and fair dealing; (ii) a financial benefit received by the Member or Manager to which the Member or Manager was not entitled; (iii) a breach of duty under § 18-607 of the Delaware Act (improper distributions); (iv) an intentional infliction of harm on the Company or a Member; or (v) an intentional violation of criminal law. If the Delaware Act or other applicable law is hereafter amended to authorize the further elimination or limitation of the liability of Members or Managers, then the liability of a Member or Manager of the Company, in addition to the limitation on personal liability provided herein, shall be eliminated or limited to the extent of such amendment, automatically and without any further action, to the maximum extent permitted by law. Any repeal or modification of this provision by the Members of the Company shall be prospective only, and shall not adversely affect any limitation on the personal liability, or any other right or protection, of a Member or Manager of the Company with respect to any state of facts existing at or prior to the time of such repeal or modification. Each Person, who is or was a Manager or officer of the Company who was or is made a party to or a witness in, or is threatened to be made a party to, or a witness in, any threatened, pending or completed claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including a grand jury proceeding) and whether formal or informal, by reason of the fact that such Person (i) is or was a Manager or officer best interest of the Company; provided that such act or (ii) while omission did not constitute gross negligence, intentional misconduct, a Manager or officer knowing violation of the Companylaw, or a transaction from which the Administrative Member will personally receive a benefit in money, property, or services to which the Administrative Member is or was serving at not legally entitled as determined by binding dispute resolution. The Company shall indemnify and hold harmless the request of the Company as a manager, member, Administrative Member and each director, officer, partner, trusteeemployee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise, shall be indemnified and held harmless by the Company with respect to such claim, action, suit or proceeding to the maximum extent the Company may indemnify such Person under Section 18-108, and other provisions of, the Delaware Act, as the same now exists or as it may hereafter be amended or changed (but, in the case of any such amendment or change, only to the extent that such amendment or change empowers the Company to provide broader indemnification than said law empowered the Company to provide prior to such amendment or change), including, without limitationAdministrative Member, against reasonable costs and expenses (including attorneys’ fees)any liability, judgmentsloss, finesdamage, penalties (including an excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement actually and reasonably cost or expense incurred by such Person in connection with such claim, action, suit or proceeding or any appeal thereof; provided, however, that except with respect to proceedings seeking to enforce indemnification under this Article, entitlement to such indemnification shall be conditioned upon the Company being afforded the opportunity to participate directly on behalf of such Person in such claim, action, suit or proceeding or any settlement discussions relating thereto, and with respect to any settlement or other non-adjudicated disposition of any threatened or pending claim, action, suit or proceeding, entitlement to indemnification shall be further conditioned upon the prior approval by the Company of the proposed settlement or other non-adjudicated disposition. Approval or disapproval by the Company of any proposed settlement or other non-adjudicated disposition shall not subject the Company to any liability to, or require indemnification or reimbursement of, any Person who the Company would not otherwise have been required to indemnify or reimburse. The right to indemnification conferred in this Article shall include the right to payment or reimbursement by the Company of reasonable expenses incurred in connection with any such claim, action, suit or proceeding in advance of its final disposition; provided, however, that the payment or reimbursement of such expenses in advance of the final disposition of such claim, action, suit or proceeding shall be made only upon delivery to the Company of: (i) a written undertaking by or them on behalf of the Person Company or in furtherance of the Company's best interest without relieving the Administrative Member of liability for gross negligence, intentional misconduct, a knowing violation of the law or the terms of this Agreement, or any transaction from which the Administrative Member will personally receive a benefit in money, property, or services to which the Administrative Member is not legally entitled. No Member shall have any personal liability with respect to the satisfaction of any required indemnification of the above-mentioned Administrative Member. Any indemnification required to be made by the Company shall be made promptly following the fixing of the liability, loss, damage, cost or expense incurred or suffered by a final judgment of any court, settlement, contract or otherwise. In addition, the Company may advance funds to a Administrative Member claiming indemnification under this Article Section 7.6 for legal expenses and other costs incurred as a result of a legal action brought against such person only if (i) the legal action relates to the performance of duties or services by the Administrative Member on behalf of the Company, (ii) the legal action is initiated by a party other than a Member, and (iii) such Administrative Member undertakes to repay all amounts so the advanced funds to the Company if it shall ultimately be is determined that such Person Administrative Member is not entitled to be indemnified under this Article or otherwise, and (ii) a written affirmation of such Person’s good faith belief that such Person has met the applicable standard of conduct necessary to require indemnification by the Company pursuant to this Article or otherwise. This Article shall be deemed a contract between the Company and each Person who is a Manager or officer of the Company at any time while this Article and the relevant provisions of the Delaware Act are in effect, and any repeal or modification of the Delaware Act or terms of this Article shall not adversely affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any claim, action, suit or proceeding theretofore or thereafter brought or threatened based, in whole or in part, upon any such state of facts. The Company may, by action of the Managers, provide indemnification to such of the employees and agents of the Company to such extent and to such effect as the Managers shall determine to be appropriate and as otherwise authorized by the Delaware Act, as the same now exists or as it may hereafter be amended. Except only as may be limited by the affirmative requirements of applicable law, the indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights which a Person seeking indemnification or advancement of expenses may have, hereafter acquire or become entitled to under any statute, provision of the Certificate, this Agreement or another agreement, vote of the Managers or otherwise. This Article shall be applicable to all claims, actions, suits or proceedings commenced after the effective date hereof, whether arising from acts or omissions occurring before or after the effective date hereof. Each Person who is now serving or who shall hereafter serve as a Manager or officer of the Company shall be deemed to be doing so in reliance upon the rights of indemnification provided for in this Article, and such rights of indemnification shall continue as to a Person who has ceased to be a Manager or officer of the Company, as the case may be, and shall inure to the benefit of the heirs, executors, legal or personal representatives, administrators, and successors of such a Person. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify each Manager and officer of the Company to the maximum extent permitted by any applicable portion of this Article that shall not have been invalidated. Notwithstanding anything in this Article to the contrary, the Company shall (except with respect to proceedings initiated to enforce rights of indemnification to which a Person is entitled under this Article or otherwise) indemnify a Person in connection with a claim, action, suit or proceeding (or part thereof) initiated by such Person only if the initiation of such claim, action, suit or proceeding (or part thereof) was authorized by the Managers. The Company may purchase and maintain insurance, at its expense, to protect itself and any Person who is or was a Manager officer, employee or agent of the Company, or while a Manager or officer of the Company, is or was serving at the request of the Company as a manager, member, director, officer, partner, trustee, employee or agent of another limited liability company, corporation, partnership, joint venture, trust, employee benefit plan or other entity or enterprise, against any liability asserted against such Person and incurred by such Person in such capacity, or arising out of such Person’s status as such, and whether or not the Company would have the power to indemnify such Person against such liability or eliminate or limit the Person’s liability to the Company for the conduct giving rise to the liability under the provisions of this Article or the Delaware Act. The Company may create a trust fund, grant a security interest and/or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the maximum extent permitted by law and including as a part thereof any or all of the foregoing, to ensure the payment of such sums as may be necessary to effect full indemnification. The Company’s obligation to make indemnification and pay expenses pursuant to this Article shall be in excess of any insurance purchased and maintained by the Company and such insurance shall be primary. To the extent that indemnity or expenses of a Person entitled to indemnification and payment of expenses pursuant to this Article are paid on behalf of or to such Person by such insurance, such payments shall be deemed to be in satisfaction of the Company’s obligation to such Person to make indemnification and pay expenses pursuant to this ArticleAgreement.