Common use of Limited Liability Company Opportunity Clause in Contracts

Limited Liability Company Opportunity. (a) The Company and each Member acknowledges and affirms that the other Members (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) may have, and may continue to participate in, directly or indirectly, investments in assets and businesses which are, or will be, suitable for the Company or competitive with the Company’s business (“Member Investments”). (b) The Company and each Member, individually and on behalf of the Company, expressly waives any conflicts of interest or potential conflicts of interest that exist or arise as a result of any such Member Investments and agrees that no Member, Manager nor any of their respective representatives (other than, in each case, Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) that complies with this Section 8.5 shall have liability to any Member or any Affiliate thereof, or the Company with respect to such conflicts of interest or potential conflicts of interest in respect of such Member Investments. (c) Subject to clause (d) below, the Company and each past, present and future Member (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) and each of their respective Affiliates, 25776957.3325776957.34 39 WEIL:\96757130\2\36182.0003 Case 18-10584-MFW Doc 1078-5 Filed 10/12/18 Page 45 of 90 officers, directors, trustees, employees, partners, managers, members, stockholders, beneficiaries and agents (the foregoing Persons in this clause (c), including (for the avoidance of doubt) any such Persons that may be Managers, the “Exempted Persons”), has the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage in any business, business activity or line of business, including those that are the same or similar to those of the Company or any of its Subsidiaries or may be deemed to be competing with the Company or any of its Subsidiaries. (d) In the event that any Exempted Person acquires knowledge of a potential transaction or matter that may be a business opportunity for any of the Company or one or more of its subsidiaries, on the one hand, and such Exempted Person or any other Person, on the other hand, such Exempted Person shall have no duty (contractual, fiduciary or otherwise) to communicate or present such business opportunity to the Company or any of its subsidiaries or Affiliates, as the case may be, and notwithstanding anything herein to the contrary, shall not be liable to the Company or any of its Affiliates, Members or creditors for breach of any duty (contractual, fiduciary or otherwise) by reason of the fact that such Exempted Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or any of its subsidiaries; provided, however, that this clause (d) shall not apply to any business opportunities which come to an Exempted Person’s attention solely as a result of such Exempted Person’s (or their officers’, directors’, trustees’, employees’, partners’, managers’, members’, stockholders’, beneficiaries’, affiliates’ and agents’) rights under this Agreement or position as a Manager, officer, employee, director or trustee of the Company or any of its subsidiaries.

Limited Liability Company Opportunity. (a) The Company and each Member acknowledges and affirms that the other Members (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) may have, and may continue to participate in, directly or indirectly, investments in assets and businesses which are, or will be, suitable for the Company or competitive with the Company’s business (“Member Investments”). (b) The Company and each Member, individually and on behalf of the Company, expressly waives any conflicts of interest or potential conflicts of interest that exist or arise as a result of any such Member Investments and agrees that no Member, Manager nor any of their respective representatives (other than, in each case, Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) that complies with this Section 8.5 shall have liability to any Member or any Affiliate thereof, or the Company with respect to such conflicts of interest or potential conflicts of interest in respect of such Member Investments. (c) Subject to clause (d) below, the Company and each past, present and future Member (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) and each of their respective Affiliates, 25776957.3325776957.34 39 WEIL:\96757130\2\36182.0003 Case 18-10584-MFW Doc 1078-5 Filed 10/12/18 Page 45 of 90 officers, directors, trustees, employees, partners, managers, members, stockholders, beneficiaries and agents (the foregoing Persons in this clause (c), including (for the avoidance of doubt) any such Persons that may be Managers, the “Exempted Persons”), has the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage in any business, business activity or line of business, including those that are the same or similar to those of the Company or any of its Subsidiaries or may be deemed to be competing with the Company or any of its Subsidiaries. (d) In the event that any Exempted Person acquires knowledge of a potential transaction or matter that may be a business opportunity for any of the Company or one or more of its subsidiaries, on the one hand, and such Exempted Person or any other Person, on the other hand, such Exempted Person shall have no duty (contractual, fiduciary or otherwise) to communicate or present such business opportunity to the Company or any of its subsidiaries or Affiliates, as the case may be, and notwithstanding anything herein to the contrary, shall not be liable to the Company or any of its Affiliates, Members or creditors for breach of any duty (contractual, fiduciary or otherwise) by reason of the fact that such Exempted Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or any of its subsidiaries; provided, however, that this clause (d) shall not apply to any business opportunities which come to an Exempted Person’s attention solely as a result of such Exempted Person’s (or their officers’, directors’, trustees’, employees’, partners’, managers’, members’, stockholders’, beneficiaries’, affiliates’ and agents’) rights under this Agreement or position as a Manager, officer, employee, director or trustee of the Company or any of its subsidiaries.

Limited Liability Company Opportunity. ‌ (a) The Company and each Member acknowledges and affirms that the other Members (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) may have, and may continue to participate in, directly or indirectly, investments in assets and businesses which are, or will be, suitable for the Company or competitive with the Company’s business (“Member Investments”).Investments”).‌ (b) The Company and each Member, individually and on behalf of the Company, expressly waives any conflicts of interest or potential conflicts of interest that exist or arise as a result of any such Member Investments and agrees that no Member, Manager nor any of their respective representatives (other than, in each case, Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) that complies with this Section 8.5 shall have liability to any Member or any Affiliate thereof, or the Company with respect to such conflicts of interest or potential conflicts of interest in respect of such Member Investments. (c) Subject to clause (d) below, the Company and each past, present and future Member (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) and each of their respective Affiliates, 25776957.3325776957.34 39 WEIL:\96757130\2\36182.0003 Case 18-10584-MFW Doc 1078-5 Filed 10/12/18 Page 45 of 90 officers, directors, trustees, employees, partners, managers, members, stockholders, beneficiaries and agents (the foregoing Persons in this clause (c), including (for the avoidance of doubt) any such Persons that may be Managers, the “Exempted Persons”), has the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage in any business, business activity or line of business, including those that are the same or similar to those of the Company or any of its Subsidiaries or may be deemed to be competing with the Company or any of its Subsidiaries.Subsidiaries.‌ (d) In the event that any Exempted Person acquires knowledge of a potential transaction or matter that may be a business opportunity for any of the Company or one or more of its subsidiaries, on the one hand, and such Exempted Person or any other Person, on the other hand, such Exempted Person shall have no duty (contractual, fiduciary or otherwise) to communicate or present such business opportunity to the Company or any of its subsidiaries or Affiliates, as the case may be, and notwithstanding anything herein to the contrary, shall not be liable to the Company or any of its Affiliates, Members or creditors for breach of any duty (contractual, fiduciary or otherwise) by reason of the fact that such Exempted Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or any of its subsidiaries; provided, however, that this clause (d) shall not apply to any business opportunities which come to an Exempted Person’s attention solely as a result of such Exempted Person’s (or their officers’, directors’, trustees’, employees’, partners’, managers’, members’, stockholders’, beneficiaries’, affiliates’ and agents’) rights under this Agreement or position as a Manager, officer, employee, director or trustee of the Company or any of its subsidiaries.

Limited Liability Company Opportunity. ‌ (a) The Company and each Each Member acknowledges and affirms that the other Members (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) may have, and may continue to participate in, directly or indirectly, investments in assets and businesses which are, or will be, suitable for the Company or competitive with the Company’s business (“Member Investments”)business. (b) The Company and each Each Member, individually and on behalf of the Company, expressly (i) waives any conflicts of interest or potential conflicts of interest that exist or arise as a result of any such Member Investments investments and agrees that no Member, Manager nor any of their respective representatives (other than, in each case, Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) that complies with this Section 8.5 shall have liability to any Member or any Affiliate thereof, or the Company with respect to such conflicts of interest or potential conflicts of interest interest, (ii) acknowledges and agrees that no Member nor any of their respective representatives (including any Manager) will have any duty to disclose to the Company or any other Member any such business opportunities, whether or not competitive with the Company’s business and whether or not the Company might be interested in respect such business opportunity for itself (except to the extent that such Member, Manager or representative is an officer, consultant or employee of such the Company or its Subsidiaries), (iii) agrees that the terms of this Section 7.5 to the extent that they modify or limit a duty or other obligation (including fiduciary duties), if any, that a Member Investmentsmay have to the Company or any other Member under the Act or other applicable law, rule or regulation, are reasonable in form, scope and content; and (iv) waives to the fullest extent permitted by the Act any duty or other obligation, if any, that a Member may have to the Company or another Member, pursuant to the Act or any other applicable law, rule or regulation, to the extent necessary to give effect to the terms of this Section 7.5. (c) Subject to clause (d) below, the The Company renounces and each past, present waives any and future Member (other than Officers, officers of any of the Company’s Subsidiaries and employees of the Company or any of the Company’s Subsidiaries) and each of their respective Affiliates, 25776957.3325776957.34 39 WEIL:\96757130\2\36182.0003 Case 18-10584-MFW Doc 1078-5 Filed 10/12/18 Page 45 of 90 officers, directors, trustees, employees, partners, managers, members, stockholders, beneficiaries and agents (the foregoing Persons in this clause (c), including (for the avoidance of doubt) any such Persons that may be Managers, the “Exempted Persons”), has the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage all interest in any businessbusiness opportunity presented to any Member and/or Manager unless such business opportunity was presented to such Member and/or Manager in such person’s capacity as an employee, business activity Manager, consultant or line officer of business, including those that are the same or similar to those of the Company or any of its Subsidiaries or may be deemed to be competing with the Company or any of its Subsidiaries. (d) In the event that any Exempted Person acquires knowledge of a potential transaction or matter that may be a business opportunity for any of the Company or one or more of its subsidiaries, on the one hand, and such Exempted Person or any other Person, on the other hand, such Exempted Person shall have no duty (contractual, fiduciary or otherwise) to communicate or present such business opportunity to the Company or any of its subsidiaries or Affiliates, as the case may be, and notwithstanding anything herein to the contrary, shall not be liable to the Company or any of its Affiliates, Members or creditors for breach of any duty (contractual, fiduciary or otherwise) by reason of the fact that such Exempted Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or any of its subsidiaries; provided, however, that this clause (d) shall not apply to any business opportunities which come to an Exempted Person’s attention solely as a result of such Exempted Person’s (or their officers’, directors’, trustees’, employees’, partners’, managers’, members’, stockholders’, beneficiaries’, affiliates’ and agents’) rights under this Agreement or position as a Manager, officer, employee, director or trustee of the Company or any of its subsidiaries.