AND NO COVERED PERSON SHALL BE
OBLIGATED PERSONALLY FOR ANY SUCH DEBT, OBLIGATION OR LIABILITY OF THE COMPANY
SOLELY BY REASON OF BEING A COVERED PERSON.
SECTION 12.2
EXCULPATION.
(A)
NO COVERED PERSON SHALL BE LIABLE TO THE
COMPANY OR ANY OTHER COVERED PERSON FOR ANY LOSS, DAMAGE OR CLAIM INCURRED BY
REASON OF ANY ACT OR OMISSION PERFORMED OR OMITTED BY SUCH COVERED PERSON IN
GOOD FAITH ON BEHALF OF THE COMPANY AND IN A MANNER REASONABLY BELIEVED TO BE
IN, OR NOT OPPOSED TO, THE BEST INTERESTS OF THE COMPANY AND PROVIDED THAT SUCH
ACTION OR OMISSION DOES NOT CONSTITUTE FRAUD OR WILLFUL MISCONDUCT BY THE
COVERED PERSON.
(B)
A COVERED PERSON SHALL BE FULLY PROTECTED IN
RELYING IN GOOD FAITH UPON THE RECORDS OF THE COMPANY AND UPON SUCH INFORMATION,
OPINIONS, REPORTS OR STATEMENTS PRESENTED TO THE COMPANY BY ANY PERSON AS TO
MATTERS THE COVERED PERSON REASONABLY BELIEVES ARE WITHIN SUCH OTHER PERSON'S
PROFESSIONAL OR EXPERT COMPETENCE AND WHO HAS BEEN SELECTED WITH REASONABLE CARE
BY OR ON BEHALF OF THE COMPANY, INCLUDING INFORMATION, OPINIONS, REPORTS OR
STATEMENTS AS TO THE VALUE AND AMOUNT OF THE ASSETS, LIABILITIES, PROFITS,
LOSSES, OR ANY OTHER FACTS
23
PERTINENT TO THE EXISTENCE AND AMOUNT OF ASSETS FROM WHICH DISTRIBUTIONS TO
MEMBERS MIGHT PROPERLY BE PAID.
SECTION 12.3
DUTIES AND LIABILITIES OF COVERED
PERSONS.
(A)
TO THE EXTENT THAT, AT LAW OR IN EQUITY, A
COVERED PERSON HAS DUTIES (INCLUDING FIDUCIARY DUTIES) AND LIABILITIES RELATING
THERETO TO THE COMPANY OR TO ANY OTHER COVERED PERSON, A COVERED PERSON ACTING
UNDER THIS AGREEMENT SHALL NOT BE LIABLE TO THE COMPANY OR TO ANY OTHER COVERED
PERSON FOR ITS GOOD FAITH RELIANCE ON THE PROVISIONS OF THIS AGREEMENT.
THE
PROVISIONS OF THIS AGREEMENT, TO THE EXTENT THAT THEY RESTRICT THE DUTIES AND
LIABILITIES OF A COVERED PERSON OTHERWISE EXISTING AT LAW OR IN EQUITY, ARE
AGREED BY THE PARTIES HERETO TO REPLACE SUCH OTHER DUTIES AND LIABILITIES OF
SUCH COVERED PERSON.
(B)
UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN,
(I) WHENEVER A CONFLICT OF INTEREST EXISTS OR ARISES BETWEEN COVERED PERSONS, OR
(II) WHENEVER THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREIN PROVIDES
THAT A COVERED PERSON SHALL ACT IN A MANNER THAT IS, OR PROVIDES TERMS THAT ARE,
FAIR AND REASONABLE TO THE COMPANY OR ANY MEMBER, THE COVERED PERSON SHALL
RESOLVE SUCH CONFLICT OF INTEREST, TAKING SUCH ACTION OR PROVIDING SUCH TERMS,
CONSIDERING IN EACH CASE THE RELATIVE INTEREST OF EACH PARTY (INCLUDING ITS OWN
INTEREST), SUCH CONFLICT, AGREEMENT, TRANSACTION OR SITUATION AND THE BENEFITS
AND BURDENS RELATING TO SUCH INTERESTS, ANY CUSTOMARY OR ACCEPTED INDUSTRY
PRACTICES, AND ANY APPLICABLE GENERALLY ACCEPTED ACCOUNTING PRACTICES OR
PRINCIPLES.
IN THE ABSENCE OF BAD FAITH BY THE COVERED PERSON, THE RESOLUTION,
ACTION OR TERM SO MADE, TAKEN OR PROVIDED BY THE COVERED PERSON SHALL NOT
CONSTITUTE A BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED HEREIN
OR OF ANY DUTY OR OBLIGATION OF THE COVERED PERSON AT LAW OR IN EQUITY OR
OTHERWISE.