Common use of Performance of Duties; Liability Clause in Contracts

Performance of Duties; Liability. No (i) Member (including any Member in its capacity as Managing Member or Special Member), (ii) officer of the Company (including any chief executive officer), (iii) officer, director, manager, stockholder, employee, member, partner, representative or agent of any Member in that capacity, or (iv) any other Person designated by the Managing Member (each, a “Covered Person”) shall be liable to the Company or any other Covered Person or any other Person that is a party to or otherwise bound by this LLC Agreement for any loss, damage or claim incurred or sustained 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 within the scope of authority conferred by such Covered Person by this LLC Agreement, unless the loss, damage or claim shall have been the result of the Covered Person’s fraud, intentional misconduct or bad faith violation of the implied contractual covenant of good faith or fair dealing, or such Covered Person’s breach of this LLC Agreement or any other agreement with the Company to which such Covered Person is a party. No Covered Person shall have any duty (including any fiduciary duty or any other duty or standard of care that may arise by default principles of law) to the Company or the Members or to other Persons that are a party to or are otherwise bound by this LLC Agreement, provided that nothing in this LLC Agreement eliminates the implied contractual covenant of good faith and fair dealing. Without limiting the foregoing, whenever in this LLC Agreement or at law or in equity a Covered Person is permitted or required to exercise its discretion in acting in such capacity, including making any elections or granting, withholding or conditioning any consent hereunder, such Covered Person shall be entitled to consider only such interests and factors as such Covered Person elects (including without limitation the interests of the member or members who designated the Managing Member or Special Member, whether or not such interests conflict with the interests of the Company or the Members and other Persons that are party to or otherwise are bound by this LLC Agreement) and shall have no duty or obligation to give any consideration to any interests or factors affecting the Company or the Members or other Persons that are party to or are otherwise bound by this LLC Agreement, or to disclose any such real, perceived or potential conflicts. The provisions of this LLC Agreement, to the extent that they eliminate, restrict or limit the duties (including, without limitation, fiduciary duties) or liabilities of any Covered Person that may otherwise exist at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person.