IN THEIR CAPACITY AS SUCH, SHALL
NOT AFFECT, IMPAIR OR ELIMINATE THE LIMITATIONS ON THE LIABILITY OF THE
NON-MANAGING MEMBERS OR ASSIGNEES UNDER THIS AGREEMENT.
44
SECTION 8.3
OUTSIDE ACTIVITIES OF
NON-MANAGING MEMBERS.
SUBJECT TO ANY AGREEMENTS ENTERED INTO PURSUANT TO
SECTION 7.6 HEREOF AND SUBJECT TO ANY OTHER AGREEMENTS ENTERED INTO BY A
NON-MANAGING MEMBER OR ITS AFFILIATES WITH THE MANAGING MEMBER, THE COMPANY OR A
SUBSIDIARY, THE FOLLOWING RIGHTS SHALL GOVERN OUTSIDE ACTIVITIES OF NON-MANAGING
MEMBERS:
(A) ANY NON-MANAGING MEMBER (OTHER THAN THE MANAGING MEMBER) AND ANY
OFFICER, DIRECTOR, EMPLOYEE, AGENT, TRUSTEE, AFFILIATE OR SHAREHOLDER OF ANY
NON-MANAGING MEMBER SHALL BE ENTITLED TO AND MAY HAVE BUSINESS INTERESTS AND
ENGAGE IN BUSINESS ACTIVITIES IN ADDITION TO THOSE RELATING TO THE COMPANY,
INCLUDING BUSINESS INTERESTS AND ACTIVITIES IN DIRECT COMPETITION WITH THE
COMPANY; (B) NEITHER THE COMPANY NOR ANY MEMBERS SHALL HAVE ANY RIGHTS BY VIRTUE
OF THIS AGREEMENT IN ANY BUSINESS VENTURES OF ANY NON-MANAGING MEMBER OR
ASSIGNEE; (C) NONE OF THE NON-MANAGING MEMBERS (IN THEIR CAPACITIES AS
NON-MANAGING MEMBERS) NOR ANY OTHER PERSON SHALL HAVE ANY RIGHTS BY VIRTUE OF
THIS AGREEMENT OR THE COMPANY RELATIONSHIP ESTABLISHED HEREBY IN ANY BUSINESS
VENTURES OF ANY OTHER PERSON, OTHER THAN THE MANAGING MEMBER, AND SUCH PERSON
SHALL HAVE NO OBLIGATION PURSUANT TO THIS AGREEMENT TO OFFER ANY INTEREST IN ANY
SUCH BUSINESS VENTURES TO THE COMPANY, ANY NON-MANAGING MEMBER OR ANY SUCH OTHER
PERSON, EVEN IF SUCH OPPORTUNITY IS OF A CHARACTER WHICH, IF PRESENTED TO THE
COMPANY, ANY NON-MANAGING MEMBER OR SUCH OTHER PERSON, COULD BE TAKEN BY SUCH
PERSON; (D) THE FACT THAT A NON-MANAGING MEMBER MAY ENCOUNTER OPPORTUNITIES TO
PURCHASE, OTHERWISE ACQUIRE, LEASE, SELL OR OTHERWISE DISPOSE OF REAL OR
PERSONAL PROPERTY AND MAY TAKE ADVANTAGE OF SUCH OPPORTUNITIES HIMSELF OR
INTRODUCE SUCH OPPORTUNITIES TO ENTITIES IN WHICH IT HAS OR HAS NOT ANY
INTEREST, SHALL NOT SUBJECT SUCH MEMBER TO LIABILITY TO THE COMPANY OR ANY OF
THE OTHER MEMBERS ON ACCOUNT OF THE LOST OPPORTUNITY; AND (E) EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, NOTHING CONTAINED IN THIS AGREEMENT
SHALL BE DEEMED TO PROHIBIT A NON-MANAGING MEMBER OR ANY AFFILIATE OF A
NON-MANAGING MEMBER FROM DEALING, OR OTHERWISE ENGAGING IN BUSINESS, WITH
PERSONS TRANSACTING BUSINESS WITH THE COMPANY OR FROM PROVIDING SERVICES
RELATING TO THE PURCHASE, SALE, RENTAL, MANAGEMENT OR OPERATION OF REAL OR
PERSONAL PROPERTY (INCLUDING REAL ESTATE BROKERAGE SERVICES) AND RECEIVING
COMPENSATION THEREFOR, FROM ANY PERSONS WHO HAVE TRANSACTED BUSINESS WITH THE
COMPANY OR OTHER THIRD PARTIES.
NOTHING IN THIS SECTION 8.3 IS INTENDED TO
ALTER ANY FIDUCIARY OBLIGATIONS OF ANY PERSON UNDER APPLICABLE DELAWARE LAW.
SECTION 8.4
RETURN OF CAPITAL AND PRIORITY
AMONG MEMBERS.
EXCEPT PURSUANT TO THE REDEMPTION RIGHTS SET FORTH IN
SECTION 4.2(E) HEREOF, NO MEMBER SHALL BE ENTITLED TO THE WITHDRAWAL OR RETURN
OF HIS OR HER CAPITAL CONTRIBUTION, EXCEPT TO THE EXTENT OF DISTRIBUTIONS MADE
PURSUANT TO THIS AGREEMENT OR UPON TERMINATION OF THE COMPANY AS PROVIDED
HEREIN. NO MEMBER OR ASSIGNEE SHALL HAVE PRIORITY OVER ANY