Common use of Resolution of Conflicts of Interest Clause in Contracts

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or therein, (i) whenever a conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an Operating Partnership, any Limited Partner or any Assignee, on the other hand, or (ii) whenever this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein provides that the General Partner shall act in a manner which is, or provide terms which are, fair and/or reasonable to the Partnership, an Operating Partnership, any Limited Partner or any Assignee, the General Partner shall resolve such conflict of interest, take such action or provide such terms considering, in each case, the relative interests of each party to 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 principles. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or under the Delaware Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement or the Investor Partnership Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or therein, (i) whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an Operating Partnership, any the Investor Partnership or the Limited Partner or any AssigneePartners, on the other hand, any resolution or (ii) whenever course of action in respect of such conflict of interest shall be permitted and deemed approved by the Limited Partners, and shall not constitute a breach of this Agreement, an Operating of the Investor Partnership Agreement or Agreement, of any other agreement contemplated herein or therein provides that the General Partner shall act in a manner which istherein, or provide terms which areof any duty stated or implied by law or equity, if the resolution or course of action is or, by operation of this Agreement is deemed to be, fair and/or and reasonable to the Partnership, an Operating Partnership, any Limited Partner or any Assignee, the . The General Partner shall resolve such be authorized in connection with its resolution of any conflict of interest, take such action or provide such terms considering, in each case, interest to consider (i) the relative interests of each any party to involved in such conflictconflict or affected by such action, agreement, transaction or situation and the benefits and burdens relating to such interests, interest; (ii) any customary or accepted TNC and industry practices, and ; (iii) any applicable generally accepted accounting practices or principles; and (iv) such additional factors as the General Partner determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the General Partner to consider the interests of any Person other than the Partnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or under the Delaware Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this the MLP Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or therein, (i) whenever a potential conflict of interest exists or arises between the General Partner Managing Member and the Company, or any of its their Affiliates, on the one hand, and the Partnership, an Operating PartnershipMLP, any MLP Partner or any MLP Assignee, on the other, any resolution or course of action by the Managing Member and the Company, or their Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all MLP Partners, and shall not constitute a breach of the MLP Agreement, of any agreement contemplated therein, or of any duty stated or implied by law or equity, if the resolution or course of action is, or by operation of this Agreement is deemed to be, fair and reasonable to the MLP. The Managing Member shall be authorized but not required in connection with its resolution of such conflict of interest to seek Special Approval of such resolution. Any such approval shall be subject to the presumption that, in making its decision, the Conflicts Committee acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the MLP and, in any proceeding brought by any MLP Limited Partner or by or on behalf of such MLP Limited Partner or any Assigneeother MLP Limited Partners or the MLP challenging such approval, on the other handPerson bringing or prosecuting such proceeding shall have the burden of overcoming such presumption. Any conflict of interest and any resolution of such conflict of interest shall be conclusively deemed fair and reasonable to the MLP if such conflict of interest or resolution is (i) approved by Special Approval, or (ii) whenever this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein provides that the General Partner shall act in a manner which is, or provide on terms which are, fair and/or reasonable no less favorable to the PartnershipMLP than those generally being provided to or available from unrelated third parties or (iii) fair to the MLP, an Operating Partnershiptaking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the MLP). XXXXX LOGISTIC SERVICES, L.L.C. FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT The Managing Member may also adopt a resolution or course of action that has not received Special Approval. The Managing Member (including the Conflicts Committee in connection with Special Approval), acting through the Company, shall be authorized in connection with its determination of what is "fair and reasonable" to the MLP and in connection with its resolution of any Limited Partner or any Assignee, the General Partner shall resolve such conflict of interest, take such action or provide such terms considering, in each case, interest to consider (A) the relative interests of each any party to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, interest; (B) any customary or accepted industry practices, practices and any customary or historical dealings with a particular Person; (C) any applicable generally accepted accounting practices or principles; and (D) such additional factors as the Managing Member (including the Conflicts Committee) determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. In any proceeding brought by any MLP Limited Partner or by or on behalf of such MLP Limited Partner or any other MLP Limited Partners or the MLP alleging that such a resolution by the Managing Member (and not by the Conflicts Committee, whose resolution shall be conclusive as provided above), acting through the Company, is not fair to the MLP, such MLP Limited Partner shall have the burden of proof of overcoming such conclusion. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the Managing Member (including the Conflicts Committee), acting through the Managing Member, to consider the interests of any Person other than the MLP. In the absence of bad faith by the General PartnerManaging Member, the resolution, action or terms so made, taken or provided by the General Partner Managing Member, acting through the Managing Member, with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership the MLP Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or or, to the extent permitted by law, under the Delaware LP Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement, Agreement or the Operating Partnership Agreement or any other agreement contemplated herein or thereinAgreement, (i) whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an the Operating Partnership, any Limited Partner or any Assignee, on the other hand, any resolution or (ii) whenever course of action in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, an of the Operating Partnership Agreement or Agreement, of any other agreement contemplated herein or therein provides that the General Partner shall act in a manner which istherein, or provide terms which areof any duty stated or implied by law or equity, if the resolution or course of action is or, by operation of this Agreement is deemed to be, fair and/or and reasonable to the Partnership, an Operating Partnership, any Limited Partner or any Assignee, the . The General Partner shall resolve such be authorized in connection with its resolution of any conflict of interest, take such action or provide such terms considering, in each case, interest to consider (i) the relative interests of each any party to involved in such conflictconflict or affected by such action, agreement, transaction or situation and the benefits and burdens relating to such interests, interest; (ii) any customary or accepted TNC and industry practices, and ; (iii) any applicable generally accepted accounting practices or principles; and (iv) such additional factors as the General Partner determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the General Partner to consider the interests of any Person other than the Partnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or under the Delaware Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement or the MLP Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or therein, (i) whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an Operating Partnershipthe MLP, any Limited Partner or any Assignee, on the other handother, any resolution or (ii) whenever course of action by the General Partner or its Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, an Operating Partnership Agreement or of the MLP Agreement, of any other agreement contemplated herein or therein provides that therein, or of any duty stated or implied by law or equity, if the General Partner shall act in a manner which resolution or course of action is, or provide terms which areby operation of this Agreement is deemed to be, fair and/or and reasonable to the Partnership. The General Partner shall be authorized but not required in connection with its resolution of such conflict of interest to seek Special Approval of such resolution. Any such approval shall be subject to the presumption that, in making its decision, the Conflicts Committee acted on an Operating Partnershipinformed basis, in good faith and in the honest belief that the action taken was in the best interests of the Partnership and the MLP and, in any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any Assigneeother Limited Partners or the Partnership challenging such approval, the General Partner Person bringing or prosecuting such proceeding shall resolve have the burden of overcoming such presumption. Any conflict of interest and any resolution of such conflict of interestinterest shall be conclusively deemed fair and reasonable to the Partnership if such conflict of interest or resolution is (i) approved by Special Approval, take such (ii) on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties or (iii) fair to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership). The General Partner may also adopt a resolution or course of action or provide such terms considering, that has not received Special Approval. The General Partner (including the Conflicts Committee in each case, connection with Special Approval) shall be authorized in connection with its determination of what is "fair and reasonable" to the Partnership and in connection with its resolution of any conflict of interest to consider (A) the relative interests of each any party to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, interest; (B) any customary or accepted industry practices, practices and any customary or historical dealings with a particular Person; (C) any applicable generally accepted accounting practices or principles; and (D) HEP OPERATING COMPANY, L.P FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP such additional factors as the General Partner (including the Conflicts Committee) determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. In any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any other Limited Partners or the Partnership alleging that such a resolution by the General Partner (and not by the Conflicts Committee, whose resolution shall be conclusive as provided above) is not fair to the Partnership, such Limited Partner shall have the burden of proof of overcoming such conclusion. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the General Partner (including the Conflicts Committee) to consider the interests of any Person other than the Partnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or or, to the extent permitted by law, under the Delaware LP Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement or the MLP Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or therein, (i) whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an Operating Partnershipthe MLP, any Limited Partner or any Assignee, on the other handother, any resolution or (ii) whenever course of action by the General Partner or its Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, an Operating Partnership Agreement or of the MLP Agreement, of any other agreement contemplated herein or therein provides that therein, or of any duty stated or implied by law or equity, if the General Partner shall act in a manner which resolution or course of action is, or provide terms which areby operation of this Agreement is deemed to be, fair and/or and reasonable to the Partnership. The General Partner shall be authorized but not required in connection with its resolution of such conflict of interest to seek Special Approval of such resolution. Any such approval shall be subject to the presumption that, in making its decision, the Conflicts Committee acted on an Operating Partnershipinformed basis, in good faith, and in the honest belief that the action taken was in the best interests of the Partnership and the MLP, and in any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or by any Assignee, other Limited Partners or the Partnership challenging such approval the Person bringing or prosecuting such proceeding shall have the burden of overcoming such presumption. Any conflict of interest and any resolution of such conflict of interest shall be conclusively deemed fair and reasonable to the Partnership if such conflict of interest or resolution is (i) approved by Special Approval (as long as the material facts known to the General Partner or any of its Affiliates regarding any proposed transaction were disclosed to the Conflicts Committee at the time it gave its approval), (ii) on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties or (iii) fair to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership). The General Partner may also adopt a resolution or course of action that has not received Special Approval. The General Partner (including the Conflicts Committee in connection with Special Approval) shall resolve such be authorized in connection with its determination of what is "fair and reasonable" to the Partnership and in connection with its resolution of any conflict of interest, take such action or provide such terms considering, in each case, interest to consider (A) the relative interests of each any party to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, interest; (B) any customary or accepted industry practices, practices and any customary or historical dealings with a particular Person; (C) any applicable generally accepted accounting practices or principles; and (D) such additional factors as the General Partner (including the Conflicts Committee) determines in its sole discretion to be relevant, reasonable or appropriate under the circumstances. In any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any other Limited Partners or the Partnership alleging that such a resolution by the General Partner (and not by the Conflicts Committee, whose resolution shall be conclusive as provided above) is not fair to the Partnership, such Limited Partner shall have the burden of proof of overcoming such conclusion. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the General Partner (including the Conflicts Committee) to consider the interests of any Person other than the Partnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or or, to the extent permitted by law, under the Delaware Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).

Resolution of Conflicts of Interest. (a) Unless otherwise expressly provided in this Agreement, the Operating Partnership Agreement or any other agreement contemplated herein or thereinGroup Member Agreement, (i) whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, an Operating Partnershipany Group Member or, any Limited Partner or any Assignee, on the other handother, any resolution or (ii) whenever course of action by the General Partner or its Affiliates in respect of such conflict of interest shall be permitted and deemed approved by all Partners, and shall not constitute a breach of this Agreement, an Operating Partnership Agreement or of any other Group Member Agreement, of any agreement contemplated herein or therein provides that therein, or of any duty stated or implied by law or equity, if the resolution or course of action is, or by operation of this Agreement is (i) approved by Special Approval, (ii) approved by a Unit Majority (excluding Outstanding Common Units held by the General Partner shall act in a manner which isor its Affiliates), (iii) on terms no less favorable to the Partnership than those generally being provided to or available from unrelated third parties, or provide terms which are, (iv) fair and/or and reasonable to the Partnership, taking into account the totality of the relationships between the parties involved (including other transactions that may be particularly favorable or advantageous to the Partnership). The General Partner shall be authorized but not required in connection with its resolution of such conflict of interest to seek Special Approval or Limited Partner approval of such resolution, and the General Partner may also adopt a resolution or course of action that has not received Special Approval or Limited Partner approval. If Special Approval is sought, then it shall be presumed that, in making its decision, the Conflicts Committee acted on an Operating informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the Partnership, and if neither Special Approval nor Limited Partner approval is sought and the Board of Directors of the General Partner determines that the resolution or course of action taken with respect to a conflict of interest satisfies either of the standards set forth in clauses (iii) or (iv) above, then it shall be presumed that, in making its decision, the Board of Directors acted in good faith, and in any proceeding brought by any Limited Partner or by or on behalf of such Limited Partner or any Assigneeother Limited Partner or the Partnership challenging such approval, the Person bringing or prosecuting such proceeding shall have the burden of overcoming such presumption. Nothing contained in this Agreement, however, is intended to nor shall it be construed to require the General Partner shall resolve such conflict of interest, take such action or provide such terms considering, in each case, (including the relative Conflicts Committee) to consider the interests of each party to such conflict, agreement, transaction or situation and any Person other than the benefits and burdens relating to such interests, any customary or accepted industry practices, and any applicable generally accepted accounting principlesPartnership. In the absence of bad faith by the General Partner, the resolution, action or terms so made, taken or provided by the General Partner with respect to such matter shall not constitute a breach of this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein or a breach of any standard of care or duty imposed herein or therein or or, to the extent permitted by law, under the Delaware Act or any other applicable law, rule or regulation. Unless otherwise expressly provided in this Agreement, an Operating Partnership Agreement or any other agreement contemplated herein or therein, any provision contained herein or therein shall control to the fullest extent possible if it is in conflict with such standard of care or duty, the Delaware Act or any other applicable law, rule or regulation; and each Limited Partner and Assignee hereby waives such standard of care or duty and the Delaware Act and such applicable law, rule or regulation and agrees that the same shall be modified and/or waived to the extent necessary to permit the General Partner to act as described above and to give effect to the foregoing provisions of this Section 6.11(a).60