Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII). (b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement. (c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to: (i) the identity of the Members; (ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company; (iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or (iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members. (d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that: (i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by the Initial Member; (ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and (iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company. (e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company. (f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 3 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as each of the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may be otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Ancillary Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained13.
Appears in 2 contracts
Samples: Limited Liability Company Interest Sale and Assignment Agreement, Limited Liability Company Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive All power and discretion to, authority to manage and shall, manage control the business and affairs of the Company (which, for all purposes of this Article III, shall include any Subsidiaries of the Company) shall be exclusively vested in the Members. The Members shall exercise such power and authority collectively, as provided in this Agreement, through a management committee (the “Management Committee”). Notwithstanding the foregoing sentence, in order to facilitate the orderly and efficient management of the Company, the Members hereby delegate to a delegate (the “Delegate”) certain power and authority to conduct the day-to-day business and affairs of the Company on and after the Effective Date as set out in Section 3.1(c) below and in the Delegation of Authority Policy, subject in all cases to the direction and supervision of the Members, acting through the Management Committee. The Members, acting through the Management Committee or otherwise in accordance with this Agreement, may further delegate to the Delegate such power and authority to conduct the business and affairs of the Company, in addition to that power and authority described in the Delegation of Authority Policy and those duties specifically set forth in this Agreement, as the Members, acting through the Management Committee, deem appropriate. The Private Owner may not resign as Members, acting through the ManagerManagement Committee, may not Dispose of modify any power or delegate, in whole or in part, its rights, responsibilities or duties as the Manager authority to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and conduct the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time previously delegated to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Delegate.
(b) Except as otherwise specifically provided The Company shall not have “managers” within the meaning of the Act. Decisions or actions taken by the Management Committee and the Delegate in accordance with the provisions of this Agreement shall constitute decisions or actions by the Company and without limitation of shall be binding on the Company.
(c) In addition to the powers expressly and authorities granted to the Manager under any other provision of this Agreement, the authorityDelegate (subject to (A) any applicable limitations that may be set forth in Section 3.1(d) or in the Delegation of Authority Policy, duties (including fiduciary dutiesB) and functions the general supervision of the Manager Management Committee, and (C) any other provision of this Agreement that permits action or requires approval of any specified Person (collectively, the “Delegation Limitations”)), shall be identical have the power and authority to do, on such terms as it may deem necessary or appropriate, the following with respect to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity making of any expenditures or the assumption or guarantee of liabilities, or the incurring of any other obligations, in each case in the ordinary course of the Membersconduct of the Company’s business and as is authorized by the Approved Annual Budget;
(ii) the existence making of tax (consistent with Articles VII and VIII), regulatory and other filings, or non-existence rendering of any fact periodic or facts that constitute a condition precedent other reports to acts by governmental or other agencies having jurisdiction over the Manager business or are in any other manner germane to the affairs assets of the Company;
(iii) the identity use of Persons who are authorized the assets of the Company (including cash on hand) for any purpose consistent with the terms of this Agreement and the repayment of obligations of the Company;
(iv) the negotiation, execution and performance of any contracts, conveyances or other instruments;
(v) the making of Distributions required by Section 7.6(a);
(vi) the selection, engagement, payment and dismissal of Persons, agents, attorneys, accountants, engineers, consultants and contractors to execute and deliver any instrument or document of or render service on behalf of the Company; or;
(ivvii) the acquisition, leasing or disposition of assets, in each case subject to the requirements and/or limits set forth in the Delegation of Authority Policy;
(viii) the commencement, prosecution and defense of Actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense, and the settlement or compromise of any act Action at law or failure to act in equity as permitted by the Company Delegation of Authority Policy; and
(ix) the indemnification of counterparties to commercial or any other matter whatsoever involving operational contracts entered into in the Company or ordinary course of the Membersconduct of the Company’s business.
(d) Notwithstanding the generality of Section 3.1(c) or anything else in this Agreement to the contrary contained in this Agreementcontrary, the parties hereto acknowledge and agree thatDelegate shall not take any actions in respect of its operation of the Company that are not expressly permitted by Section 3.1(c) or otherwise within the scope of the Delegation Limitations unless it obtains the prior approval of the Management Committee, including the following with respect to the Company:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed the making of distributions other than those required by the Initial MemberSection 7.6(a);
(ii) the Private Owner and modification of the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; andDelegation of Authority Policy;
(iii) the Initial appointment or dismissal of the Auditor;
(iv) the entering into or investment in new lines of business;
(v) the incurring of Indebtedness for Borrowed Money;
(vi) the acquisition, leasing or disposition of assets that is not permitted by Section 3.1(c)(vii);
(vii) the formation of or acquisition of an interest in, or the contribution of property to, any entity other than a direct or indirect wholly owned Subsidiary of the Company;
(viii) the merger or other combination of the Company with or into another Person;
(ix) the entering into of any agreement with a Member shall be entitled or an Affiliate of a Member outside the ordinary course of the conduct of the Company’s business, other than an Operational Transaction;
(x) the issuance of additional Equity Interests in the Company;
(xi) the creation of a Lien over all or substantially all of the assets of the Company;
(xii) the liquidation or dissolution of the Company;
(A) the filing of a voluntary petition in bankruptcy or any petition or answer seeking, consenting to act or acquiescing in any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any law; (B) the making of any assignment for the benefit of creditors; or (C) the taking of any action seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator for any substantial part of the properties and exercise any right of approval or consent that it has under this Agreement in its interestassets of, in its sole and absolute discretioneach case, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses of its Subsidiaries;
(xiv) the compromise or costs incurred after the formation settlement of Actions at law or in equity in an amount in excess of the Company by settlement authority of the Manager and/or its Affiliates on behalf Delegate provided for in the Delegation of Authority Policy;
(xv) the approval of the annual budget or long term plan for the benefit of the Company.Company (an “Approved Annual Budget”); and
(fxvi) This Section 3.1 is subject the issuance of any capital calls to the Members other than any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtainedRequired Contributions.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Phillips 66 Partners Lp), Limited Liability Company Agreement (Phillips 66 Partners Lp)
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall will be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall will have full and exclusive power and discretion to, and shallwill, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall will serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shallwill, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement, with the Manager having fully and finally performed its obligations in relation thereto. The Manager shall must devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall must cooperate with the Tax Matters Member Representative in all respects as reasonably requested by the Tax Matters Member, Representative from time to time, in connection with the Tax Matters MemberRepresentative’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall will not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XIIXII (and the Servicing Addendum)).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall will be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall will have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall will be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall will be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall will be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall will not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Manager, the Private Owner or their respective Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.33.13, 5.45.2, 5.5, 8.1, 8.2, 8.8(a), 9.1, 12.3(g12.1, 12.7(d), 12.7(b12.11(b), 12.12, 12.13, 12.14, 12.1512.22, 12.1813.6, 13.5 and 13.1213.10 hereof, and Sections 2.2, 2.5, 4 and 5.4 of the Servicing Addendum. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall will be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Private Owner Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject Prior to the terms Closing, the management of the Company is vested exclusively in Initial Member. From and conditions of this Agreementafter the Closing, the management of the Company shall be vested exclusively in Member, which is hereby appointed, effective as of the Person appointed from time Closing, to time hereunder act as the “Manager” manager of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may Manager shall not resign as the Managerresign, may not Dispose of assign or delegate, in whole or in part, delegate its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager such until such time time, if any, as (i) the Private Owner LLC Member’s Company Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Ownernew, sole Member, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, or (ii) the Private Owner Manager is otherwise removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, dissolved in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between Member as Manager, on the Private Owner one hand, and the Company, and (y) except as may on the other hand. Nothing in this Section 3.1 eliminates, limits or otherwise be expressly specified hereinmodifies any of the express terms of this Agreement or any liability, it shall not be entitled to obligation or covenant of any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Person hereunder.
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the MembersMember;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Membersany Member.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge It is understood and agree that:
agreed that (i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
Participant, (ii) the Private Owner Member and the Company each hereby expressly waives waive any fiduciary duties that may otherwise be deemed to be owed by the Initial Participant to Member to the Private Owner or the Company; and
, and (iii) the Initial Member Participant shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner Member or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction DocumentAgreement, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the CompanyCompany (including any costs or expenses incurred as a result of the performance of its obligations under Section 3.2).
(f) This Section 3.1 is subject to any express requirement of direct Initial Member Participant consent set forth elsewhere in this Agreement, including in to Sections 2.6, 3.4, 3.8, 5.3, 5.42.7(c), 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 8.2 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained12.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager Manager, the Private Owner and/or its their respective Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g)12.1, 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Private Owner Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may be otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as each of the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may be otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Ancillary Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall will be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall will have full and exclusive power and discretion to, and shallwill, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall will serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shallwill, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement, with the Manager having fully and finally performed its obligations in relation thereto. The Manager shall must devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall must cooperate with the Tax Matters Member Representative in all respects as reasonably requested by the Tax Matters Member, Representative from time to time, in connection with the Tax Matters MemberRepresentative’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall will not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XIIXII (and the Servicing Addendum)).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall will be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall will have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall will be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall will be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall will be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall will not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Manager, the Private Owner or their respective Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 3.13, 5.2, 5.3, 5.45.5, 8.1, 8.2, 8.8(a), 9.1, 12.3(g12.1, 12.7(d), 12.7(b12.11(b), 12.12, 12.13, 12.1412.13, 12.1512.22, 12.1813.6, 13.5 and 13.1213.10 hereof, and Sections 2.2, 2.5, 4 and 5.4 of the Servicing Addendum. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall will be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Private Owner Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall will be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall will have full and exclusive power and discretion to, and shallwill, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall will serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shallwill, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement, with the Manager having fully and finally performed its obligations in relation thereto. The Manager shall must devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall must cooperate with the Tax Matters Member Representative in all respects as reasonably requested by the Tax Matters Member, Representative from time to time, in connection with the Tax Matters MemberRepresentative’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall will not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XIIXII (and the Servicing Addendum)).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall will be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall will have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall will be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall will be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall will be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall will not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Manager, the Private Owner or their respective Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 3.13, 5.2, 5.3, 5.45.5, 8.1, 8.2, 8.8(a), 9.1, 12.3(g12.1, 12.7(d), 12.7(b12.11(b), 12.12, 12.13, 12.14, 12.1512.22, 12.1813.6, 13.5 and 13.1213.10 hereof, and Sections 2.2, 2.5, 4 and 5.4 of the Servicing Addendum. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall will be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.
Appears in 2 contracts
Samples: Private Owner Interest Sale and Assignment Agreement, Limited Liability Company Operating Agreement
Management of the Company’s Affairs.
(a) Subject to the terms and conditions of this Agreement, the management of the Company shall will be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall will have full and exclusive power and discretion to, and shallwill, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall will serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shallwill, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member or the PMN Agent and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement, with the Manager having fully and finally performed its obligations in relation thereto. The Manager shall must devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall must cooperate with the Tax Matters Member Representative in all respects as reasonably requested by the Tax Matters Member, Representative from time to time, in connection with the Tax Matters MemberRepresentative’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall will not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XIIXII (and the Servicing Addendum)).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall will be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall will have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.Agreement.
(c) No Person dealing with the Company or the Manager shall will be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall will be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; andand
(iii) the Initial Member shall will be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall will not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Manager, the Private Owner or their respective Affiliates on behalf of or for the benefit of the Company.Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.33.13, 5.45.2, 5.5, 8.1, 8.2, 8.8(a), 9.1, 12.3(g12.1, 12.7(d), 12.7(b12.11(b), 12.12, 12.13, 12.14, 12.1512.22, 12.1813.6, 13.5 and 13.1213.10 hereof, and Sections 2.2, 2.5, 4 and 5.4 of the Servicing Addendum. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall will be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.obtained.
Appears in 1 contract
Samples: Private Owner Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall will be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to beto, be a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall will have full and exclusive power and discretion to, and shallwill, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall will serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shallwill, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, ; (ii) the Private Owner is removed as Manager by the Initial Member or the PMN Agent and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement, with the Manager having fully and finally performed its obligations in relation thereto. The Manager shall must devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall must cooperate with the Tax Matters Member Representative in all respects as reasonably requested by the Tax Matters Member, Representative from time to time, in connection with the Tax Matters MemberRepresentative’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall will not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management Servicing obligations under Article XII).XII (and the Servicing Addendum)).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to authority, duties (including fiduciary duties) and functions of the Manager expressly specified under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall will be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall will have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall will be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall will be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by or on behalf of the Initial Member;
(ii) each of the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; andand
(iii) the Initial Member shall will be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or of another Transaction Document or pursuant to a Related Party Agreement or any Transaction Documentpermitted pursuant to Section 3.5, the Company shall will not be liable for, and the Manager Manager, the Private Owner and their respective Affiliates shall not seek reimbursement from the Company or any Member (other than, as to any such Member that is an Affiliate of the Person so seeking reimbursement, as may separately be agreed by such Member, without recourse to or reimbursement from the Company) for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Manager, the Private Owner or their respective Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.33.13, 5.45.2, 5.5, 8.1, 8.2, 8.8(a), 9.1, 12.3(g12.1, 12.7(d), 12.7(b12.11(b), 12.12, 12.13, 12.14, 12.1512.22, 12.1813.6, 13.5 and 13.1213.10 hereof, and Sections 2.2, 2.5, 4 and 5.4 of the Servicing Addendum. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall will be null and void ab initio unless and until the Initial Member’s prior written consent is obtained.
Appears in 1 contract
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive All power and discretion to, authority to manage and shall, manage control the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager(which, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms for all purposes of this Agreement and the transferee is admitted as a member Article III, shall include all members of the Company and Successor to Group) shall be exclusively vested in the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this AgreementMembers. The Manager Members shall devote exercise such time to the affairs of the Company power and authority collectively, as is necessary to manage the Company as set forth provided in this Agreement. Without limitation of , through a management committee (the foregoing, the Manager shall cooperate with the Tax Matters “Management Committee”) and each Member in hereby delegates any and all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor management powers to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Management Committee.
(b) Except as otherwise specifically provided The Company shall not have “managers” (and the Members do not constitute “managers”) within the meaning of the Act. Decisions or actions taken by the Management Committee in accordance with the provisions of this Agreement shall constitute decisions or actions by the Company and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to binding on the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this AgreementCompany.
(c) No Person dealing The Management Committee shall have full and complete authority, power, and discretion to manage and control the business, affairs, and properties of the Company (and, indirectly through the Company, any Subsidiary of the Company to the extent the Company has such authority, power, and discretion) and to make all decisions regarding those matters and to perform any and all other acts or activities customary or incidental to the management of the Company (and, indirectly through the Company, any Subsidiary of the Company to the extent the Company has the right to manage such Subsidiary) and the Business, including, for the avoidance of doubt, the appointment of those managers to the board of managers of Sacagawea LLC that the Company is entitled to appoint under the applicable governing documents of such Person. Without limiting the generality of the foregoing and subject to the provisions of Section 3.1(d) and Section 3.1(e), Management Committee approval shall be required for all matters not expressly delegated by the Management Committee to the Officers. All actions of a Member with respect to the Management Committee shall be taken through its Representatives.
(d) Each of the following matters to be taken by the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority other member of the Manager to execute any instrument Company Group shall require the affirmative vote or make any undertaking on behalf written consent of Representatives representing at least 80% of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as toVoting Interests:
(i) the identity of the Membersmaking any distributions (other than those required by Section 7.6(a));
(ii) appointing or dismissing the existence Auditor;
(iii) entering into or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are investing in any line of business (other manner germane than the Business);
(iv) incurring any Indebtedness for Borrowed Money;
(v) approving any decision to dispose of or lease any portion of the affairs Midstream Assets that have a value equal to or greater than $1,500,000 in the aggregate, or that otherwise are necessary for the continued operation of the Business consistent with past practice, in any transaction or series of related transactions;
(vi) forming or acquiring any interest in, or contributing any property to, any entity that is not a direct or indirect wholly owned Subsidiary of the Company;
(vii) selling or otherwise transferring any Equity Interests in any other Person;
(viii) amending or modifying the Certificate (or any of the governing documents of any member of the Company Group or any other Person in which the Company owns Equity Interests);
(ix) removing or replacing any Construction Manager or Operator, as applicable, under the Construction Management Agreement and Operating Agreement;
(x) voluntarily granting any Lien on any assets of any member of the Company Group other than in the ordinary course of business;
(xi) compromising or settling Actions at law or in equity in an amount in excess of $1,000,000;
(xii) directing the voting or other actions of those members of the board of managers of Sacagawea LLC appointed by the Company;
(xiii) amending in any material respect, or entering into, any transportation service agreement, tariff, or other contract involving the expenditure or receipt by the Company of an amount in excess of $5,000,0003 over the term of such __________________________ 3 In the Terminal LLC Agreement, this amount will be $15,000,000 if PSXP has a 70% equity interest, contract;
(xiv) redeeming any Equity Interests of any Member, other than a redemption of Equity Interests from all Members pro rata;
(xv) changing any election, or electing, to cause any member of the Company Group to be classified as other than a partnership or a disregarded entity for Tax purposes;
(xvi) converting any member of the Company Group to another form of legal entity;
(xvii) changing the method of accounting or outside auditors of the Company Group;
(xviii) approving the annual budget or long term plan for the Company (an “Approved Annual Budget”) or any amendment thereto, it being understood that cost overruns that are deemed approved pursuant to Section 3.9(a) shall not constitute an “amendment” for purposes of this Section 3.1(d)(xviii);
(xix) except with respect to the Initial Paradigm Contribution, allowing any contribution to the capital of the Company by any Member or any other Person in any form other than cash;
(xx) issuing any guarantee by any member of the Company Group for the obligation of any other Person (other than any other member of the Company Group);
(xxi) except as may be required by Law, approving, altering, terminating, amending or waiving the Insurance Program;
(xxii) appointing or terminating any Officer;
(xxiii) removing or appointing the Tax Matters Partner;
(xxiv) establishing, closing or designating or modifying the designation of any officers or agents of any member of the Company Group with signatory authority or power over any accounts established by or for the use of any member of the Company Group; and
(xxv) entering into any contract providing for (or committing to provide for), or delegating authority to any Person (including any subcommittee of the Management Committee) for decisions on, any of the foregoing transactions or matters, or the delegation of authority to any Person to approve any of the foregoing transactions or matters. _________________________________________________________________________ $10,000,000 if PSXP has a 60% equity interest, and $5,000,000 if PSXP has a 50% equity interest.
(e) All matters identified in Section 3.1(e) shall require the affirmative vote or written consent of Representatives representing 100% of the Voting Interests:
(i) Liquidating or dissolving any member of the Company Group;
(ii) (A) the filing of a voluntary petition in bankruptcy or any petition or answer seeking, consenting to or acquiescing in any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any law; (B) the making of any assignment for the benefit of creditors; or (C) the taking of any action seeking, consenting to or acquiescing in the appointment of a trustee, receiver or liquidator for any substantial part of the properties and assets of, in each case, any member of the Company Group;
(iii) permitting any reorganization, consolidation, sale, merger or other similar transaction involving any member of the identity of Persons who are authorized Company Group;
(iv) approving any decision to execute and deliver any instrument or document dispose of or lease the System; and
(v) issuing any Equity Interests or any other form of equity or debt securities of any member of the Company Group or any options, warrants, bonds, debentures, indebtedness, or other rights or securities exercisable for or convertible or exchangeable into such Equity Interests or securities.
(f) The Company may not, either directly or indirectly through any member of the Company Group, exercise any vote it or any other member of the Company Group may have to cause any Subsidiary of the Company (other than any member of the Company Group) to (i) without the affirmative vote or written consent of Representatives representing at least 80% of the Voting Interests, take any action described in Section 3.1(d) (as applied to such Subsidiary), or (ii) without the affirmative vote or written consent of the Representatives representing 100% of the Voting Interests, take any action described in Section 3.1(e) (as applied to such Subsidiary).
(g) All decisions taken by the Management Committee pursuant to this Section 3.1 shall be conclusive and binding on all Members and the Company Group.
(h) Except as otherwise provided in Section 3.1(i), any Conflict Activity shall be conducted by and under the direction of, and subject to the sole approval by, the Representatives that have been designated by the Non-Conflicted Member and neither the Conflicted Member nor the Representative (or Alternate Representative) designated by the Conflicted Member shall have the right to vote or participate in any meeting of the Management Committee regarding such Conflict Activity or any approval in connection with any action by the Management Committee in respect of such Conflict Activity and the presence of any Representative appointed by the Conflicted Member shall not be required for purposes of determining the presence of a quorum in connection with any such action. No Officer that is also a present officer, director, member, manager, stockholder, partner or employee of a Conflicted Member (or one of its Affiliates) shall have any obligation to take or refrain from taking any action on behalf of the Company; orCompany Group with respect to such Conflict Activity except to provide information, documents and other related items reasonably requested by the Company or the Management Committee in connection with such Conflict Activity (provided that such Person shall not be required to provide such information, documents or other items if doing so would require such Person to violate any applicable confidentiality restrictions (following a request of the waiver thereof) or waive or violate any legal professional privilege or similar duty of confidentiality). Except with respect to such Person’s failure to provide information, documents or other related items requested by the Company in connection with such Conflict Activity in violation of the foregoing, any such Person’s failure or refusal to take or refrain from taking any such action shall not constitute (i) a breach of any duty, fiduciary or otherwise, if any, owed by such Person to any member of the Company Group or (ii) gross negligence or willful misconduct on the part of such Person. Notwithstanding anything to the contrary in this Agreement, (i) this Section 3.1(h) shall not apply for the benefit of any Non-Conflicted Member at any time that such Member is a Defaulting Member, and the Representatives that have been appointed by such Defaulting Member shall have no rights under this Section 3.1(h), with respect to any Conflict Activity under the Construction Management Agreement or Operating Agreement, and the Representatives appointed by such other Member shall have authority to act on behalf of the Company Group with respect to such Conflict Activity during the Default Period or Cross- Default Period, as applicable, and (ii) the execution by a member of the Company Group of (A) the Transaction Documents to which it is a party or (B) any Affiliate Contract that is (x) contemplated by the Construction Management Agreement or Operating Agreement, as applicable, and (y) on terms and conditions consistent with the requirements therefor specified in the Construction Management Agreement or Operating Agreement, as applicable, shall not be considered to be a Conflict Activity and, in each case, are hereby deemed approved by the Management Committee and the Members for all purposes.
(ivi) any act Notwithstanding anything herein to the contrary, during the term of the Business Opportunity Agreement, where a Member or failure to act one or more of such Member’s Affiliates is pursuing an Exclusive Opportunity in accordance with the Business Opportunity Agreement, (A) the execution by the Company or any other matter whatsoever involving member of the Company or Group of an Affiliate Contract governing (solely) the Members.
(d) Notwithstanding anything interconnection of the subject assets to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company Midstream Assets shall not be liable fordeemed a Conflict Activity and (B) the Management Committee may not unreasonably delay or withhold its affirmative vote or consent approving the execution of any such Affiliate Contract; provided, in each case, that such Affiliate Contract is on terms and conditions substantially similar, subject to adjustment for reasonable operational differences, to interconnection agreements entered into by the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation applicable member of the Company by Group as of such time with Persons other than the Manager and/or its Affiliates on behalf of or for the benefit of the CompanyMembers and their respective Affiliates.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Samples: Formation and Contribution Agreement (Phillips 66 Partners Lp)
Management of the Company’s Affairs. (a) Subject The management of the Company is fully reserved to the terms Members, and conditions of this Agreement, the management Company shall not have "managers" as that term is used in the Act. The powers of the Company shall be vested exclusively in exercised by or under the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolvedauthority of, and the business and affairs of the Company are wound upshall be managed under the direction of, in accordance with the terms of this Agreement. Members, who shall make all decisions and take all actions for the Company.
(b) The Manager Members shall devote such time have the power and authority to delegate to one or more other persons the affairs Members' rights and power to manage and control the business and affairs, or any portion thereof, of the Company as is necessary Company, including to manage the Company as set forth in this Agreement. Without limitation delegate to agents, officers and employees of the foregoing, the Manager shall cooperate with the Tax Matters a Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and or the Company, and (y) except as may to delegate by a management agreement with or otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Persons.
(bc) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical Members hereby delegate to the authority, duties (including fiduciary duties) and functions of the board of directors of the Company (the "Board"), to the fullest extent permitted under this Agreement and Delaware law, all of the Company's power and authority to manage and control the business and affairs of the Partnership. The Board may designate one or more other persons to be officers of the Company to assist in carrying out the Board's decisions and the day-to-day activities of the Company in its role as the general partner of the Partnership. Offices are not "managers" as that term is used in the Act. Any officers who are so designated shall have such titles and authority and perform such duties as the Board may delegate to them. The salaries or other compensation, if any, of the officers of a corporation organized under the Delaware General Corporation Law Company shall be fixed by the Board. Any officer may be removed as such, either with or without cause, by the Board and any vacancy occurring in any office of the Company may be filled by the Board. Designation of an officer shall not of itself create contract rights.
(d) The Members shall have exclusive authority over the business and not electing to be governed by subchapter XIV thereof)affairs of the Company other than in its role as general partner of the Partnership. The Manager type of matter referred to in the prior sentence where the Members have exclusive authority shall have no authority include, but not be limited to, the following: (i) the amount and timing of distributions made by the Company; (ii) the issuance or repurchase of any equity interests in the Company; (iii) the prosecution, settlement or management of any claim made directly against the Company; (iv) whether to take sell, convey, transfer or authorize pledge any asset of the taking Company; (v) whether to amend, modify or waive any rights relating to any assets of the Company or any Subsidiary of the Company (including the decision to amend or forego distributions in respect of the Incentive Distribution Rights, as defined in the Partnership Agreement); (vi) whether to enter into any agreement to incur an obligation of the Company or any Subsidiary of the Company other than an agreement entered into for and on behalf of the Partnership or any Subsidiary of the Partnership for which the Company or any Subsidiary of the Company is liable exclusively in its capacity as general partner of the Partnership or any of its Affiliates; (vii) commencement of any action relating to bankruptcy, insolvency, reorganization or relief of debtors by the Company; (viii) a merger, consolidation, recapitalization or similar transaction involving the Company; and (ix) dissolution or liquidation of the Company. In addition, the Members shall have exclusive authority to cause the Company to exercise the rights of the Company or any Subsidiary of the Company as general partner of the Partnership (or those exercisable after the Company ceases to be the general partner of the Partnership) provided in contravention the following provisions of any express term of this the Partnership Agreement.
(ci) No Person dealing Sections 4.6(a) and (b) ("Transfer of the General Partner's General Partner Interest") and Section 4.7 ("Transfer of Incentive Distribution Rights"), solely with respect to the decision by the Company to transfer its general partner interest in the Partnership or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Membersits Incentive Distribution Rights;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the CompanySection 5.9 ("Limited Preemptive Right");
(iii) Section 7.5(e) (relating to the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf right of the Company; orCompany to purchase Units or other Partnership Securities);
(iv) Section 7.6(a) and (b) ("Loans from the General Partner; Loans or Contributions from the Partnership or Group Members"), solely with respect to the decision by the Company to lend funds to, enter into agreements with, sell, transfer or convey any act property to, or failure purchase any property from, or permit the use of its facilities and assets by a Group Member (as defined in the Partnership Agreement), in each case subject to act the provisions of Section 7.9 of the Partnership Agreement;
(v) Section 7.7 ("Indemnification"), solely with respect to any decision by the Company or any other matter whatsoever involving of its Subsidiaries to exercise its rights as an "Indemnitee""
(vi) Section 7.12 ("Registration Rights of the General Partner and its Affiliates"), solely with respect to any decision to exercise registration rights;
(vii) Section 11.1 ("Withdrawal of the General Partner"), solely with respect to the decision by the Company or any Subsidiary of the Members.
(d) Notwithstanding anything Company to withdraw as general partner of the Partnership and to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by the Initial Membergiving of notices required thereunder;
(iiviii) the Private Owner Section 11.2(a) and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company(b) ("Interest of Departing Partner and Successor General Partner"); and
(iiiix) the Initial Member shall be entitled Section 15.1 ("Right to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the CompanyAcquire Limited Partner Interests").
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Hiland Holdings GP, LP)
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as each of the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Ancillary Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Management of the Company’s Affairs. (a) Subject The management of the Company is fully reserved to the terms Members, and conditions of this Agreement, the management Company shall not have “managers” as that term is used in the Act. The powers of the Company shall be vested exclusively in exercised by or under the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolvedauthority of, and the business and affairs of the Company are wound upshall be managed under the direction of, in accordance with the terms of this Agreement. Members, who shall make all decisions and take all actions for the Company.
(b) The Manager Members shall devote such time have the power and authority to delegate to one or more other persons the affairs Members’ rights and power to manage and control the business and affairs, or any portion thereof, of the Company as is necessary Company, including to manage the Company as set forth in this Agreement. Without limitation delegate to agents, officers and employees of the foregoing, the Manager shall cooperate with the Tax Matters a Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and or the Company, and (y) except as may to delegate by a management agreement with or otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Persons.
(bc) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical Members hereby delegate to the authority, duties (including fiduciary duties) and functions of the board of directors of the Company (the “Board”), to the fullest extent permitted under this Agreement and Delaware law, all of the Company’s power and authority to manage and control the business and affairs of the Partnership. The Board may designate one or more other persons to be officers of the Company to assist in carrying out the Board’s decisions and the day-to-day activities of the Company in its role as the general partner of the Partnership. Officers are not “managers” as that term is used in the Act. Any officers who are so designated shall have such titles and authority and perform such duties as this Agreement provides or the Board may delegate to them. The salaries or other compensation, if any, of the officers of a corporation organized under the Delaware General Corporation Law (Company shall be fixed by the Board. Any officer may be removed as such, either with or without cause, by the Board, and any vacancy occurring in any office of the Company may be filled by the Board. Designation of an officer shall not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreementitself create contract rights.
(cd) No Person dealing with The Members shall have exclusive authority over the business and affairs of the Company other than in its role as general partner of the Partnership. The type of matter referred to in the prior sentence where the Members have exclusive authority shall include, but not be limited to, the following: (i) the amount and timing of distributions made by the Company; (ii) the issuance or repurchase of any equity interests in the Company; (iii) the prosecution, settlement or management of any claim made directly against the Company; (iv) whether to sell, convey, transfer or pledge any asset of the Company; (v) whether to amend, modify or waive any rights relating to any assets of the Company or any Subsidiary (other than the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority Partnership) of the Manager Company (including the decision to execute amend or forego distributions in respect of the Incentive Distribution Rights, as defined in the Partnership Agreement); (vi) whether to enter into any instrument agreement to incur an obligation of the Company or make any undertaking Subsidiary of the Company other than an agreement entered into for and on behalf of the Company. No Person dealing with Partnership or any Subsidiary of the Partnership for which the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation Subsidiary of the foregoingCompany is liable exclusively in its capacity as general partner of the Partnership or any of its Affiliates; (vii) commencement of any action relating to bankruptcy, insolvency, reorganization or relief of debtors by the Company; (viii) a merger, consolidation, recapitalization or similar transaction involving the Company; (ix) dissolution or liquidation of the Company and (x) the voting of any Person dealing with equity interests in the Partnership held by the Company. In addition, the Members shall have exclusive authority to cause the Company to exercise the rights of the Company or any Subsidiary of the Manager is entitled Company as general partner of the Partnership (or those exercisable after the Company ceases to rely upon a certificate signed by be the Manager as togeneral partner of the Partnership) provided in the following provisions of the Partnership Agreement or similar successor provisions:
(i) the identity Sections 4.6(a) and (b) (“Transfer of the Members;
General Partner’s General Partner Interest”) and Section 4.7 (ii) the existence or non-existence “Transfer of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane Incentive Distribution Rights”), solely with respect to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act decision by the Company to transfer its general partner interest in the Partnership or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by the Initial Memberits Incentive Distribution Rights;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Hiland Partners, LP)
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as each of the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Ancillary Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained13.
Appears in 1 contract
Samples: Limited Liability Company Interest Sale and Assignment Agreement
Management of the Company’s Affairs. (a) Subject Prior to the terms Closing, the management of the Company is vested exclusively in the Initial Member, which is xxxxxx appointed to act as the Manager. From and conditions of this Agreementafter the Closing, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”)Member, which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the ManagerManager effective as of the Closing. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may Manager shall not resign as the Managerresign, may not Dispose of assign or delegate, in whole or in part, delegate its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager such until such time time, if any, as (i) the Private Owner LLC Member’s Company Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Ownernew, sole Member, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, or (ii) the Private Owner Manager is otherwise removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, dissolved in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters The Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner Member, as Manager, on the one hand, and the Company, and (y) except as may on the other hand. Nothing in this Section 3.01 eliminates, limits or otherwise be expressly specified hereinmodifies any of the express terms of this Agreement or any liability, it shall not be entitled to obligation or covenant of any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Person hereunder.
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the MembersMember;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the MembersMember.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge It is understood and agree that:
agreed that (i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
Participant, (ii) the Private Owner Member and the Company each hereby expressly waives waive any fiduciary duties that may otherwise be deemed to be owed by the Initial Member Participant to the Private Owner Member or the Company; and
, and (iii) the Initial Member Participant shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner Member or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction DocumentAgreement, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any the Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates any Related Person on behalf of or for the benefit of the CompanyCompany (including any costs or expenses incurred as a result of the performance of its obligations under Section 3.02).
(f) This Section 3.1 3.01 is subject to any express requirement of direct Initial Member Participant consent set forth elsewhere in this Agreement, including in to Sections 2.62.06, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a2.07(c), 9.18.01, 12.3(g)8.02, 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 8.07(a) and 13.1212.06. Any purported action by the Company or the Manager requiring the consent of the Initial Member Participant under this Agreement shall be null and void ab initio unless and until the Initial MemberParticipant’s consent is obtained.
Appears in 1 contract
Samples: Operating Agreement
Management of the Company’s Affairs. (a) Subject The management of the Company is fully reserved to the terms Members, and conditions of this Agreement, the management Company shall not have “managers” as that term is used in the Act. The powers of the Company shall be vested exclusively in exercised by or under the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolvedauthority of, and the business and affairs of the Company are wound upshall be managed under the direction of, in accordance with the terms of this Agreement. Members, who shall make all decisions and take all actions for the Company.
(b) The Manager Members shall devote such time have the power and authority to delegate to one or more other persons the affairs Members’ rights and power to manage and control the business and affairs, or any portion thereof, of the Company as is necessary Company, including to manage the Company as set forth in this Agreement. Without limitation delegate to agents, officers and employees of the foregoing, the Manager shall cooperate with the Tax Matters a Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner and or the Company, and (y) except as may to delegate by a management agreement with or otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Persons.
(bc) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical Members hereby delegate to the authority, duties (including fiduciary duties) and functions of the board of directors of the Company (the “Board”), to the fullest extent permitted under this Agreement and Delaware law, all of the Company’s power and authority to manage and control the business and affairs of the Partnership. The Board may designate one or more other persons to be officers of the Company to assist in carrying out the Board’s decisions and the day-to-day activities of the Company in its role as the general partner of the Partnership. Officers are not “managers” as that term is used in the Act. Any officers who are so designated shall have such titles and authority and perform such duties as this Agreement provides or the Board may delegate to them. The salaries or other compensation, if any, of the officers of a corporation organized under the Delaware General Corporation Law (Company shall be fixed by the Board. Any officer may be removed as such, either with or without cause, by the Board, and any vacancy occurring in any office of the Company may be filled by the Board. Designation of an officer shall not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreementitself create contract rights.
(cd) No Person dealing with The Members shall have exclusive authority over the business and affairs of the Company other than in its role as general partner of the Partnership. The type of matter referred to in the prior sentence where the Members have exclusive authority shall include, but not be limited to, the following: (i) the amount and timing of distributions made by the Company; (ii) the issuance or repurchase of any equity interests in the Company; (iii) the prosecution, settlement or management of any claim made directly against the Company; (iv) whether to sell, convey, transfer or pledge any asset of the Company; (v) whether to amend, modify or waive any rights relating to any assets of the Company or any Subsidiary (other than the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority Partnership) of the Manager Company; (vi) whether to execute enter into any instrument agreement to incur an obligation of the Company or make any undertaking Subsidiary of the Company other than an agreement entered into for and on behalf of the Company. No Person dealing with Partnership or any Subsidiary of the Partnership for which the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation Subsidiary of the foregoingCompany is liable exclusively in its capacity as general partner of the Partnership or any of its Affiliates; (vii) commencement of any action relating to bankruptcy, insolvency, reorganization or relief of debtors by the Company; (viii) a merger, consolidation, recapitalization or similar transaction involving the Company; (ix) dissolution or liquidation of the Company and (x) the voting of any Person dealing with equity interests in the Partnership held by the Company. In addition, the Members shall have exclusive authority to cause the Company to exercise the rights of the Company or any Subsidiary of the Manager is entitled Company as general partner of the Partnership (or those exercisable after the Company ceases to rely upon a certificate signed by be the Manager as togeneral partner of the Partnership) provided in the following provisions of the Partnership Agreement or similar successor provisions:
(i) the identity Sections 4.6(a) and (b) (“Transfer of the MembersGeneral Partner Interest”), solely with respect to the decision by the Company to transfer its general partner interest in the Partnership;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane Section 7.5(d) (relating to the affairs right of the CompanyCompany to purchase Units or other Partnership Securities as such terms are defined in the Partnership Agreement);
(iii) Section 7.6(a) and (b) (“Loans from the identity General Partner; Loans or Contributions from the Partnership; Contracts with Affiliates; Certain Restrictions on the General Partner”), solely with respect to the decision by the Company to lend funds to, enter into agreements with, sell, transfer or convey any property to, or purchase any property from, or permit the use of Persons who are authorized its facilities and assets by a Group Member (as defined in the Partnership Agreement), in each case subject to execute and deliver any instrument or document the provisions of or on behalf Section 7.9 of the Company; orPartnership Agreement;
(iv) Section 7.7 (“Indemnification”), solely with respect to any act or failure to act decision by the Company or any other matter whatsoever involving of its Subsidiaries to exercise its rights as an “Indemnitee;”
(v) Section 7.12 (“Registration Rights of the General Partner and its Affiliates”), solely with respect to any decision to exercise registration rights;
(vi) Section 11.1 (“Withdrawal of the General Partner”), solely with respect to the decision by the Company or any Subsidiary of the Members.
(d) Notwithstanding anything Company to withdraw as general partner of the Partnership and to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by the Initial Membergiving of notices required thereunder;
(iivii) the Private Owner Section 11.3(a) and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member (b) (“Interest of Departing General Partner and Successor General Partner”);
(viii) Section 13.2 (“Amendment Procedures”), solely with respect to the Private Owner decision to propose an amendment to the Partnership Agreement;
(ix) Section 14.2 (“Procedure for Merger, Consolidation or Conversion”), solely with respect to the Companydecision to consent to any proposed merger, consolidation or conversion of the Partnership; and
(iiix) the Initial Member shall be entitled Section 15.1 (“Right to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the CompanyAcquire Limited Partner Interests”).
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.6, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Hiland Holdings GP, LP)
Management of the Company’s Affairs. (a) Subject to the terms and conditions of this Agreement, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”), which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the Manager. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may not resign as the Manager, may not Dispose of or delegate, in whole or in part, its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager until such time as (i) the Private Owner Owner’s LLC Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Owner, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, (ii) the Private Owner is removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as each of the Manager, this Agreement constitutes a personal services contract between the Private Owner and the Company, and (y) except as may otherwise be expressly specified herein, it shall not be entitled to any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset Mortgage Loan servicing and management obligations under Article XII).
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the Members;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the Members.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree that:
(i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
(ii) the Private Owner and the Company each hereby expressly waives any fiduciary duties that may otherwise be deemed to be owed by the Initial Member to the Private Owner or the Company; and
(iii) the Initial Member shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction Ancillary Document, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates on behalf of or for the benefit of the Company.
(f) This Section 3.1 is subject to any express requirement of direct Initial Member consent set forth elsewhere in this Agreement, including in Sections 2.62.6(b), 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a), 9.1, 12.3(g), 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 and 13.12. Any purported action by the Company or the Manager requiring the consent of the Initial Member under this Agreement shall be null and void ab initio unless and until the Initial Member’s consent is obtained.
Appears in 1 contract
Management of the Company’s Affairs. (a) Subject Prior to the terms Closing, the management of the Company is vested exclusively in the Initial Member, which is hereby appointed to act as the Manager. From and conditions of this Agreementafter the Closing, the management of the Company shall be vested exclusively in the Person appointed from time to time hereunder as the “Manager” of the Company (the “Manager”)Member, which Manager may, but is not required to be, a Member. Effective as of the Closing Date, the Private Owner is hereby appointed as the ManagerManager effective as of the Closing. Subject to the terms and conditions of this Agreement, the Manager shall have full and exclusive power and discretion to, and shall, manage the business and affairs of the Company in accordance with this Agreement. The Private Owner may Manager shall not resign as the Managerresign, may not Dispose of assign or delegate, in whole or in part, delegate its rights, responsibilities or duties as the Manager to any other Person, and shall serve as Manager such until such time time, if any, as (i) the Private Owner LLC Member’s Company Interest is Disposed of in accordance with the terms of this Agreement and the transferee is admitted as a member of the Company and Successor to the Private Ownernew, sole Member, in which case the transferee Member shall, effective upon such Disposition, be appointed as the “Manager” to the extent the Private Owner held such role immediately prior to such Disposition, or (ii) the Private Owner Manager is otherwise removed as Manager by the Initial Member and replaced in accordance with Section 3.2 or Section 12.4 below; or (iii) the Company is dissolved, and the business and affairs of the Company are wound up, dissolved in accordance with the terms of this Agreement. The Manager shall devote such time to the affairs of the Company as is necessary to manage the Company as set forth in this Agreement. Without limitation of the foregoing, the Manager shall cooperate with the Tax Matters The Member in all respects as reasonably requested by the Tax Matters Member, from time to time, in connection with the Tax Matters Member’s performance of its obligations under this Agreement. The Private Owner (and any Successor to the Private Owner) hereby expressly acknowledges that (x) as it relates to its role as the Manager, this Agreement constitutes a personal services contract between the Private Owner Member, as Manager, on the one hand, and the Company, and (y) except as may on the other hand. Nothing in this Section 3.01 eliminates, limits or otherwise be expressly specified hereinmodifies any of the express terms of this Agreement or any liability, it shall not be entitled to obligation or covenant of any salary, fees, reimbursement of costs or expenses, or other compensation with respect to its service as the Manager hereunder (including with respect to the Manager’s Asset servicing and management obligations under Article XII)Person hereunder.
(b) Except as otherwise specifically provided in this Agreement and without limitation of the powers expressly granted to the Manager under any other provision of this Agreement, the authority, duties (including fiduciary duties) and functions of the Manager shall be identical to the authority, duties (including fiduciary duties) and functions of the board of directors and the officers of a corporation organized under the Delaware General Corporation Law (and not electing to be governed by subchapter XIV thereof). The Manager shall have no authority to take or authorize the taking of any action in contravention of any express term of this Agreement.
(c) No Person dealing with the Company or the Manager shall be required to determine, and any such Person may conclusively assume and rely upon, the authority of the Manager to execute any instrument or make any undertaking on behalf of the Company. No Person dealing with the Company or the Manager shall be required to determine any facts or circumstances bearing upon the existence of such authority. Without limitation of the foregoing, any Person dealing with the Company or the Manager is entitled to rely upon a certificate signed by the Manager as to:
(i) the identity of the MembersMember;
(ii) the existence or non-existence of any fact or facts that constitute a condition precedent to acts by the Manager or are in any other manner germane to the affairs of the Company;
(iii) the identity of Persons who are authorized to execute and deliver any instrument or document of or on behalf of the Company; or
(iv) any act or failure to act by the Company or any other matter whatsoever involving the Company or the MembersMember.
(d) Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge It is understood and agree that:
agreed that (i) nothing contained in this Agreement creates any fiduciary duty or similar obligation owed by on behalf of the Initial Member;
Participant, (ii) the Private Owner Member and the Company each hereby expressly waives waive any fiduciary duties that may otherwise be deemed to be owed by the Initial Member Participant to the Private Owner Member or the Company; and
, and (iii) the Initial Member Participant shall be entitled to act and exercise any right of approval or consent that it has under this Agreement in its interest, in its sole and absolute discretion, without regard to and against the interests of the Private Owner Member or the Company.
(e) Unless and to the extent reimbursement is due under an express provision hereof or pursuant to a Related Party Agreement or any Transaction DocumentAgreement, the Company shall not be liable for, and the Manager shall not seek reimbursement from the Company or any the Member for, any expenses or costs incurred after the formation of the Company by the Manager and/or its Affiliates any Related Person on behalf of or for the benefit of the CompanyCompany (including any costs or expenses incurred as a result of the performance of its obligations under Section 3.02).
(f) This Section 3.1 3.01 is subject to any express requirement of direct Initial Member Participant consent set forth elsewhere in this Agreement, including in to Sections 2.62.06, 3.4, 3.8, 5.3, 5.4, 8.1, 8.2, 8.8(a2.07(c), 9.18.01, 12.3(g)8.02, 12.7(b), 12.12, 12.13, 12.14, 12.15, 12.18, 13.5 8.07(a) and 13.1212.06. Any purported action by the Company or the Manager requiring the consent of the Initial Member Participant under this Agreement shall be null and void ab initio unless and until the Initial MemberParticipant’s consent is obtained.
Appears in 1 contract
Samples: Operating Agreement
