Common use of Management by Managing Member Clause in Contracts

Management by Managing Member. (a) The Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term is used in the Act), according to this Article VI and, except with respect to certain consent requirements required by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Managing Member in accordance with this Agreement and (ii) the Managing Member shall exercise such powers in compliance with this Agreement and ensure that all organizational formalities are observed with respect to the Company. Under the direction of the Managing Member, certain activities of the Company may be conducted on the Company’s behalf by the Officers as specified and authorized by the Managing Member, who shall be agents of the Company, and the management and administration of the day-to-day business and affairs of the Company will be provided by the Managing Member. In addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreement, the Managing Member shall have (subject to the Act and all consent rights and other limitations in this Agreement) full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs of the Company. Any Person dealing with the Company, other than a Member or a Member’s Affiliate, may rely on the authority of the Managing Member or the Officers in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement. (b) Except as otherwise provided in this Agreement, each Member hereby (i) specifically delegates to the Managing Member its rights and powers to manage and control the business and affairs of the Company, and (ii) waives its right to bind the Company, in each case as, and to the extent permitted by, the Act.

Management by Managing Member. (a) The business and affairs of the Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term and NEP Member is used in the Act), according to this Article VI and, except with respect to certain consent requirements required hereby appointed by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of, the Managing Member of the Company. The Class A Member(s) shall have the sole right to designate a successor Managing Member from time to time; provided that, in accordance with this Agreement and (ii) the event that there is more than one Class A Member, any such successor Managing Member shall exercise such powers in compliance with this Agreement and ensure be selected by the holders of a majority of the outstanding Class A Units; provided, further, that all organizational formalities are observed with respect any Person appointed to serve as successor Managing Member must be an Affiliate of NEP. 868227.25C-WILSR01A - MSW (b) Except to the Company. Under the direction of the Managing Memberextent provided in Section 6.03, certain activities of the Company may be conducted on the Company’s behalf by the Officers Section 6.04, Section 7.09, or as specified and authorized by the Managing Member, who shall be agents of the Company, and the management and administration of the day-to-day business and affairs of the Company will be otherwise expressly provided by the Managing Member. In addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreementherein, the Managing Member shall have (subject to the Act full and all consent rights and other limitations in this Agreement) full exclusive power and authority to do all things on such terms as they may deem necessary or appropriate behalf of the Company to conduct, or cause to be conducteddirect, the business and affairs exercise control over all activities of the Company. Any Person dealing with the Company, other than a Member or a Member’s Affiliate, may rely on the authority of the Managing Member or the Officers in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement. (b) Except as otherwise provided in this Agreement, each Member hereby (i) specifically delegates to the Managing Member its rights and powers to manage and control administer the business and affairs of the Company, and (ii) waives its right to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company, including the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business, in each case as, and without the need for approval by or any other consent from any other Member. Except to the extent permitted bythat a Member is also the Managing Member or authority is delegated from the Managing Member to such Member in writing, no Member will have any authority to bind the ActCompany or to transact any business for the Company. The Managing Member may delegate to one or more Persons all or any part of its power and authority as Managing Member hereunder, including, subject to Section 6.03(q) and Section 6.04, pursuant to any management services agreement the Company or its Subsidiaries may enter into with any Affiliate of the Company, except for such power and authority with respect to Major Decisions or other matters expressly requiring a vote by or consent of the Members pursuant to this Agreement, which will be expressly retained by the Members.

Management by Managing Member. (a) The Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term is used in the Act), according to this Article VI and, except with respect to certain consent requirements required by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers Management of the Company shall be exercised vested in the Member, which shall be vested with the powers and authority of a “manager”, as defined in the DLLC Act; the Member in its capacity as such manager is referred to in this Agreement as the “Managing Member”. To the extent permitted by or under the authority of, applicable law and the business and affairs Member is not the sole member of the Company shall be managed under the direction ofCompany, the Managing Member is authorized to act on behalf of and to bind the Company in accordance with all respects, without any further consent, vote or approval by the Member, except as expressly provided otherwise below in this Agreement Section 2.1. To the extent that the Member is not the sole member of the Company, the Member (other than the Managing Member acting in such capacity) shall have no authority to act for or on behalf of the Company or bind the Company in any way by virtue of being a Member. In furtherance and (iiexcept to the expressly provided otherwise in the proviso in this sentence) not limitation of the foregoing, the Managing Member’s powers include, but shall not be limited to, the authority to (a) negotiate, complete, execute and deliver any and all agreements, deeds, instruments, receipts, certificates and other documents on behalf of the Company as the Managing Member shall exercise such powers consider necessary or advisable in compliance connection with this Agreement and ensure that all organizational formalities are observed with respect to the Company. Under the direction of the Managing Member, certain activities management or business of the Company may be conducted on and (b) employ, at the Company’s behalf by expense, such agents or third parties in connection with the Officers management or operation of the business of the Company as specified and authorized by the Managing MemberMember shall deem appropriate; provided, who shall however, that should the Member not be agents the sole member of the Company, and the management and administration of the day-to-day business and affairs of the Company will be provided by the Managing Member. In addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreement, the Managing Member shall not have the power or authority without the consent of the Member to (i) consolidate the Company with another entity or merge the Company with or into another entity if the Company is not the survivor of such merger, or convey all of the Company’s assets substantially as an entirety to another entity or person, or (ii) designate, approve or admit any new or additional member to the Company. The Member agrees that, subject to the Act and all consent rights and other limitations in this Agreement) full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs of the Company. Any Person dealing with the Company, other than a Member or a Member’s Affiliate, may rely on the authority of the Managing Member or the Officers in taking any action proviso set forth in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement. (b) Except as otherwise provided in this Agreement, each Member hereby (i) specifically delegates to the Managing Member its rights and powers to manage and control the business and affairs of the Company, and (ii) waives its right to bind the Company, in each case as, and to the extent permitted by, the Act.immediately preceding sentence,

Management by Managing Member. (a) The Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term is used in the Act), according to this Article VI and, except with respect to certain consent requirements required by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers Management of the Company shall be exercised by or under vested in the authority ofMember, and the business and affairs of the Company which shall be managed under vested with the direction ofpowers and authority of a “manager”, as defined in the DLLC Act; the Member in its capacity as such manager is referred to in this Agreement as the “Managing Member”. To the extent permitted by applicable law and , the Managing Member is authorized to act on behalf of and to bind the Company in accordance with all respects, without any further consent, vote or approval by the Member, except as expressly provided otherwise below in this Agreement Section 2.1. The Member (other than the Managing Member acting in such capacity) shall have no authority to act for or on behalf of the Company or bind the Company in any way by virtue of being a Member. In furtherance and (iiexcept to the expressly provided otherwise in the proviso in this sentence) not limitation of the foregoing, the Managing Member’s powers include, but shall not be limited to, the authority to (a) negotiate, complete, execute and deliver any and all agreements, deeds, instruments, receipts, certificates and other documents on behalf of the Company as the Managing Member shall exercise consider necessary or advisable in connection with the management or business of the Company and (b) employ, at the Company’s expense, such powers agents or third parties in compliance connection with this Agreement and ensure the management or operation of the business of the Company as the Managing Member shall deem appropriate; provided, however, that the Managing Member shall not have the power or authority without the consent of the Member to (i) consolidate the Company with another entity or merge the Company with or into another entity if the Company is not the survivor of such merger, or convey all organizational formalities are observed with respect of the Company’s assets substantially as an entirety to another entity or person, or (ii) designate, approve or admit any new or additional member to the Company. Under The Member agrees that, subject to the direction proviso set forth in the immediately preceding sentence, (x) all determinations, decisions and actions made or taken by the Managing Member shall be conclusive and absolutely binding upon the Company, the Member and its respective successors, assigns and representatives and (y) persons dealing with the Company are entitled to rely conclusively upon such power and authority of the Managing Member, certain activities of the Company may be conducted on the Company’s behalf by the Officers as specified and authorized by the Managing Member, who shall be agents of the Company, and the management and administration of the day-to-day business and affairs of the Company will be provided by the Managing Member. In addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreement, the Managing Member shall have (subject to the Act and all consent rights and other limitations in this Agreement) full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs of the Company. Any Person dealing with the Company, other than a Member or a Member’s Affiliate, may rely on the authority of the Managing Member or the Officers in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement. (b) Except as otherwise provided in this Agreement, each Member hereby (i) specifically delegates to the Managing Member its rights and powers to manage and control the business and affairs of the Company, and (ii) waives its right to bind the Company, in each case as, and to the extent permitted by, the Act.

Management by Managing Member. (a) The Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term is used in the Act), according to this Article VI and, except with respect to certain consent requirements required by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers Management of the Company shall be exercised vested in the Member, which shall be vested with the powers and authority of a “manager”, as defined in the DLLC Act; the Member in its capacity as such manager is referred to in this Agreement as the “Managing Member”. To the extent permitted by or under the authority of, applicable law and the business and affairs Member is not the sole member of the Company shall be managed under the direction ofCompany, the Managing Member is authorized to act on behalf of and to bind the Company in accordance with all respects, without any further consent, vote or approval by the Member, except as expressly provided otherwise below in this Agreement Section 2.1. To the extent that the Member is not the sole member of the Company, the Member (other than the Managing Member acting in such capacity) shall have no authority to act for or on behalf of the Company or bind the Company in any way by virtue of being a Member. In furtherance and (iiexcept to the expressly provided otherwise in the proviso in this sentence) not limitation of the foregoing, the Managing Member’s powers include, but shall not be limited to, the authority to (a) negotiate, complete, execute and deliver any and all agreements, deeds, instruments, receipts, certificates and other documents on behalf of the Company as the Managing Member shall exercise consider necessary or advisable in connection with the management or business of the Company and (b) employ, at the Company’s expense, such powers agents or third parties in compliance connection with this Agreement and ensure the management or operation of the business of the Company as the Managing Member shall deem appropriate; provided, however, that should the Member not be the sole member of the Company,the Managing Member shall not have the power or authority without the consent of the Member to (i) consolidate the Company with another entity or merge the Company with or into another entity if the Company is not the survivor of such merger, or convey all organizational formalities are observed with respect of the Company’s assets substantially as an entirety to another entity or person, or (ii) designate, approve or admit any new or additional member to the Company. Under the direction of the Managing MemberThe Member agrees that, certain activities of the Company may be conducted on the Company’s behalf by the Officers as specified and authorized by the Managing Member, who shall be agents of the Company, and the management and administration of the day-to-day business and affairs of the Company will be provided by the Managing Member. In addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreement, the Managing Member shall have (subject to the Act and all consent rights and other limitations in this Agreement) full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs of the Company. Any Person dealing with the Company, other than a Member or a Member’s Affiliate, may rely on the authority of the Managing Member or the Officers in taking any action proviso set forth in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement. (b) Except as otherwise provided in this Agreement, each Member hereby (i) specifically delegates to the Managing Member its rights and powers to manage and control the business and affairs of the Company, and (ii) waives its right to bind the Company, in each case as, and to the extent permitted by, the Act.immediately preceding sentence,

Management by Managing Member. (a) The Company shall be managed by the Managing Member, which shall act as the “manager” of the Company (as such term is used in the Act), according to this Article VI and, except Except with respect to certain consent requirements matters on which the approval of all of the Members is expressly required by the Act or provided in this Agreement, no Member, by virtue of having the status of a Member, shall have any management power or control over the business and affairs of the Company or actual or apparent authority to enter into contracts on behalf of, or to otherwise bind, the Company, and the Members shall not have any control over the day-to-day operation or management of the Company or its Subsidiaries. Except as described in the preceding sentence, (i) the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction ofexclusively by, the Managing Member in accordance with this Agreement its sole discretion. (b) The Managing Member shall have the power and (ii) authority to delegate to one or more other Persons the Managing Member’s rights and power to manage and control the business and affairs, or any portion thereof, of the Company, including to delegate to agents, officers and employees of the Managing Member shall exercise such powers in compliance or the Company, and to delegate by a management agreement with this Agreement and ensure that all organizational formalities are observed or otherwise to other Persons. (c) Subject to Section 7.1 with respect to the Company. Under Managing Member and notwithstanding anything in this Agreement to the direction contrary or any duties (including fiduciary duties) otherwise existing at law or in equity: (i) in the exercise of rights and performance of duties under this Agreement, each Covered Person will, to the fullest extent permitted by Applicable Law, have no duties (including fiduciary duties) to the Company or to any Member; (ii) whenever under this Agreement the Managing MemberMember is permitted or required to make a decision, certain activities of the Company may be conducted on the Company’s behalf by the Officers as specified and authorized by the Managing Member will be entitled to consider only such interests and factors as it desires (including such Managing Member’s own interests and the interests of its Affiliates), who shall be agents and will, to the fullest extent permitted by Applicable Law, have no duty or obligation (fiduciary or otherwise) to give any consideration to any interest of or factors affecting the Company, any Member or any other Person; and (iii) whenever under this Agreement any Member is permitted or required to take any action, each Member will be entitled to consider only such interests and factors as such Member desires and will, to the management and administration fullest extent permitted by Applicable Law, have no duty or obligation (fiduciary or otherwise) to give any consideration to any interest of the day-to-day business and affairs of or factors affecting the Company will be provided or any other Member. The provisions of this Agreement, to the extent that they restrict or eliminate the duties (including fiduciary duties) and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Managing Member. In addition Members to replace, to the powers that now or hereafter can be granted under the Act fullest extent permitted by Applicable Law, such other duties and liabilities of such Covered Person. (d) Subject to all other powers granted under any other provision of its obligations and duties as set forth in this Agreement, the Managing Member shall have (subject to the Act and all consent rights and other limitations in this Agreement) full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted, the business and affairs exercise any of the Company. Any Person dealing with powers granted to it by this Agreement and perform any of the Companyduties imposed upon it hereunder either directly or by or through its agents, other than a Member or a Member’s Affiliate, may rely on the authority of and the Managing Member shall not be responsible or the Officers in taking any action in the name of liable to the Company without inquiry into or any Member for any mistake, action, inaction, misconduct, negligence, fraud or bad faith on the part of any such agent appointed by the Managing Member unless the Managing Member had knowledge that such agent was acting unlawfully or engaging in fraud. (e) The Managing Member acting for, on behalf of or in relation to, the Company in respect of any transaction, any investment or any business decision or action, or otherwise shall be entitled to rely on the provisions of this Agreement and any other agreement or compliance document contemplated by this Agreement and on the advice of counsel, accountants and other professionals that is provided to the Company or the Managing Member. The Managing Member shall not be liable to the Company or to any Member for its reliance on any of the foregoing agreements or documents or such advice, provided that, there has not been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of such reliance, and taking into account the acknowledgments and agreements set forth in this Agreement, the Managing Member committed a bad faith violation of the implied contractual covenant of good faith and fair dealing or, in the case of a criminal matter, acted with itknowledge that the Managing Member’s conduct was unlawful. (f) The Managing Member may rely, regardless and shall incur no liability in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, paper, document, signature or writing reasonably believed by the Managing Member to be genuine, and may rely on a certificate signed by an officer, agent or representative of any Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge, in each case unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of such reliance, action or inaction, the Managing Member committed a bad faith violation of the implied contractual covenant of good faith and fair dealing or, in the case of a criminal matter, acted with knowledge that the Managing Member’s conduct was unlawful. (g) No Covered Person shall be liable to the Company or to any Member under this Agreement, at law or in equity for losses sustained or liabilities incurred as a result of any act or omission (in relation to the Company, any transaction, any investment or any business decision or action, including for breach of contract or breach of duties including fiduciary duties) taken or omitted by a Covered Person in connection with the activities of the Company or its subsidiaries, unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of such act or omission, and taking into account the acknowledgments and agreements set forth in this Agreement, such Covered Person committed a bad faith violation of the implied contractual covenant of good faith and fair dealing or, in the case of a criminal matter, acted with knowledge that such Covered Person’s conduct was unlawful. (h) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, NO COVERED PERSON SHALL BE LIABLE TO THE COMPANY, TO ANY MEMBER OR TO ANY OTHER PERSON MAKING CLAIMS ON BEHALF OF THE FOREGOING FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE OR LOSSES BY REASON OF COST OF CAPITAL, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GRANTING OR WITHHOLDING OF ANY APPROVAL REQUIRED HEREUNDER REGARDLESS OF WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR SIMILAR LAW OR ANY OTHER LEGAL OR EQUITABLE DUTY OR PRINCIPLE, AND THE COMPANY AND EACH COVERED PERSON RELEASE EACH OF THE OTHER SUCH PERSONS FROM LIABILITY FOR ANY SUCH DAMAGES. (i) The obligations of the Company to the Covered Persons provided in this Agreement or arising under law are solely the obligations of the Company, and no personal liability whatsoever shall attach to, or be incurred by, any Member or other Covered Person for such obligations, to the fullest extent permitted by law. The obligations of the Members provided in this Agreement or arising under law are solely the obligations of such Member, and no personal liability whatsoever shall attach to, or be incurred by, any other Covered Person for such obligations, to the fullest extent permitted by law. Where the foregoing provides that no personal liability shall attach to or be incurred by a Covered Person, any claims against or recourse to such Covered Person for or in connection with such liability, whether arising in common law or equity or created by rule of law, statute, constitution, contract or otherwise, are expressly released and waived under this Agreement, to the fullest extent permitted by law, as a condition of, and as part of the consideration for, the execution of this Agreement and any related agreement, and the incurring by the Company or such Member of the obligations provided in such agreements. (j) Nothing in this Section 7.1 shall be deemed to (i) limit or waive any rights that action actually is taken any Person has for breach of contract or indemnification under the terms of this Agreement or any other agreement or document contemplated by this Agreement or (ii) release or otherwise prevent any Covered Person from asserting a claim against another Covered Person with respect to a violation of the implied contractual covenant of good faith and fair dealing implied by Applicable Law. (k) Any amendment, modification or repeal of this Section 7.1 or any provision hereof shall be prospective only and shall not in any way affect the limitations on liability of the Covered Persons, or terminate, reduce or impair the right of any past, present or future Covered Person, under and in accordance with the provisions of this AgreementSection 7.1 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. (bl) Except Each party to this Agreement hereby acknowledges and agrees that each Member, including the Managing Member, and each of their respective Affiliates (each, a “Competing Person”), may engage or invest in, and devote its and their time to, such other business ventures or activities as otherwise provided such Person or Persons may choose, whether or not such ventures or activities are considered competitive with the Company or its business and whether or not the Company or any other Member participates in such ventures or activities, including the participation by the Company in a joint venture or any other business opportunity with any Member, without providing any other Member the right to participate in such joint venture or business opportunity (collectively, the “Right to Compete”), and neither the Company nor any Member will have any right by virtue of this Agreement, each Member Agreement or the relationship created hereby in or to such other venture or activity of such Competing Person (i) specifically delegates or to the Managing Member its rights income or proceeds derived therefrom) notwithstanding any duty existing at law or in equity, and powers the pursuit of such other venture or activity will not be deemed wrongful or improper or a violation of any duty (fiduciary or otherwise). The Right to manage and control the business and affairs Compete of each Competing Person does not require notice to, approval from, or other sharing with, any of the Company, and (ii) waives its right to bind other Members or the Company, in each case as, and to . To the fullest extent permitted byby law, the Actlegal doctrines of “corporate opportunity,” “business opportunity” and similar doctrines will not be applied to any such competitive venture or activity of any Competing Person.