RIGHTS.
ANY VACANCY OCCURRING IN
ANY OFFICE OF THE COMPANY MAY BE FILLED BY THE BOARD AND SHALL REMAIN VACANT
UNTIL FILLED BY THE BOARD.
(C)
DUTIES OF OFFICERS; GENERALLY.
THE OFFICERS, IN THE PERFORMANCE
OF THEIR DUTIES AS SUCH, SHALL OWE TO THE UNITHOLDERS DUTIES OF LOYALTY AND DUE
CARE OF THE TYPE OWED BY THE OFFICERS OF A CORPORATION TO SUCH CORPORATION AND
ITS STOCKHOLDERS UNDER THE LAWS OF THE STATE OF DELAWARE.
ARTICLE VI
GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS
Section 6.1
Limitation of Liability.
(A)
EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, THE DEBTS,
OBLIGATIONS, AND LIABILITIES OF THE COMPANY, WHETHER ARISING IN CONTRACT, TORT,
OR OTHERWISE, SHALL BE SOLELY THE DEBTS, OBLIGATIONS, AND LIABILITIES OF THE
COMPANY, AND NO UNITHOLDER SHALL BE OBLIGATED PERSONALLY FOR ANY SUCH DEBT,
OBLIGATION, OR LIABILITY OF THE COMPANY SOLELY BY REASON OF BEING A UNITHOLDER
OF THE COMPANY; PROVIDED THAT A UNITHOLDER SHALL BE REQUIRED TO RETURN TO THE
COMPANY ANY DISTRIBUTION MADE TO IT IN CLEAR AND MANIFEST ACCOUNTING OR SIMILAR
ERROR AND MAY BE REQUIRED TO PROVIDE INDEMNIFICATION PURSUANT TO AN APPROVED
SALE PURSUANT TO SECTION 5 OF THE SECURITYHOLDERS AGREEMENT OR A TRANSFER
PURSUANT TO SECTION 2 OF THE SECURITYHOLDERS AGREEMENT.
THE IMMEDIATELY
PRECEDING SENTENCE SHALL CONSTITUTE A COMPROMISE TO WHICH ALL UNITHOLDERS HAVE
CONSENTED WITHIN THE MEANING OF THE DELAWARE ACT.
NOTWITHSTANDING ANYTHING
CONTAINED HEREIN TO THE CONTRARY, THE FAILURE OF THE COMPANY TO OBSERVE ANY
FORMALITIES OR REQUIREMENTS RELATING TO THE EXERCISE OF ITS POWERS OR MANAGEMENT
OF ITS BUSINESS AND AFFAIRS UNDER THIS AGREEMENT OR THE DELAWARE ACT SHALL NOT
BE GROUNDS FOR IMPOSING PERSONAL LIABILITY ON THE UNITHOLDERS FOR LIABILITIES OF
THE COMPANY.
(B)
EXCEPT AS SET FORTH IN SECTION 6.1(C) OR AS OTHERWISE AGREED IN A
SEPARATE WRITING BETWEEN A UNITHOLDER AND THE COMPANY WITH RESPECT TO SUCH
UNITHOLDER, IN NO EVENT SHALL ANY UNITHOLDER BE REQUIRED TO MAKE ANY ADDITIONAL
CAPITAL CONTRIBUTION TO THE COMPANY OR BE SUBJECT TO ANY FORM OF CAPITAL CALL.
28
(C)
IN ACCORDANCE WITH THE DELAWARE ACT AND THE LAWS OF THE STATE OF
DELAWARE, A UNITHOLDER OF A LIMITED LIABILITY COMPANY MAY, UNDER CERTAIN
CIRCUMSTANCES, BE REQUIRED TO RETURN AMOUNTS PREVIOUSLY DISTRIBUTED TO SUCH
UNITHOLDER.
IT IS THE INTENT OF THE UNITHOLDERS THAT NO DISTRIBUTION TO ANY
UNITHOLDER PURSUANT TO ARTICLE IV HEREOF SHALL BE DEEMED A RETURN OF MONEY OR
OTHER PROPERTY PAID OR DISTRIBUTED IN VIOLATION OF THE DELAWARE ACT.
THE
PAYMENT OF ANY SUCH MONEY OR DISTRIBUTION OF ANY SUCH PROPERTY TO A UNITHOLDER
SHALL BE DEEMED TO BE A COMPROMISE WITHIN THE MEANING OF THE DELAWARE ACT, AND
THE UNITHOLDER RECEIVING ANY SUCH MONEY OR PROPERTY SHALL NOT BE REQUIRED TO
RETURN TO ANY PERSON ANY SUCH MONEY OR PROPERTY.
HOWEVER, IF ANY COURT OF
COMPETENT JURISDICTION HOLDS THAT, NOTWITHSTANDING THE PROVISIONS OF THIS
AGREEMENT, ANY UNITHOLDER IS OBLIGATED TO MAKE ANY SUCH PAYMENT, SUCH OBLIGATION
SHALL BE THE OBLIGATION OF SUCH UNITHOLDER AND NOT OF ANY OTHER UNITHOLDER.