5(B)(I), AND THE COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS
AFFILIATES, HEREBY RENOUNCE AND WAIVE ANY RIGHT TO REQUIRE THE MANAGER OR ANY OF
ITS INDEMNITEES TO ACT IN A MANNER INCONSISTENT WITH THE PROVISIONS OF THIS
SECTION 5(B).
(III)
THE MANAGER AND ITS INDEMNITEES WILL NOT BE LIABLE TO THE COMPANY OR
ANY OF ITS AFFILIATES FOR BREACH OF ANY DUTY (CONTRACTUAL OR OTHERWISE) BY
REASON OF ANY ACTIVITIES OR OMISSIONS OF THE TYPES REFERRED TO IN THIS SECTION
5(B) OR OF ANY SUCH PERSON'S PARTICIPATION THEREIN.
(C)
LIMITATION OF LIABILITY. IN NO EVENT WILL
THE MANAGER OR ANY OF ITS INDEMNITEES BE LIABLE TO THE COMPANY OR ANY OF ITS
AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR SAVINGS, WHETHER OR NOT SUCH
DAMAGES ARE FORESEEABLE, OR FOR ANY THIRD PARTY CLAIMS
5
(WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), RELATING TO THE SERVICES TO BE
PROVIDED BY THE MANAGER HEREUNDER.
6.
ASSIGNMENT, ETC. EXCEPT AS PROVIDED
BELOW, NO PARTY HERETO HAS THE RIGHT TO ASSIGN THIS AGREEMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF EACH OF THE OTHER PARTIES. NOTWITHSTANDING THE FOREGOING, (A)
THE MANAGER MAY ASSIGN ALL OR PART OF ITS RIGHTS AND OBLIGATIONS HEREUNDER TO
ANY AFFILIATE OF SUCH MANAGER THAT PROVIDES SERVICES SIMILAR TO THOSE CALLED FOR
BY THIS AGREEMENT, IN WHICH EVENT SUCH MANAGER WILL BE RELEASED OF ALL OF ITS
RIGHTS AND OBLIGATIONS HEREUNDER AND (B) THE PROVISIONS HEREOF FOR THE BENEFIT
OF INDEMNITEES OTHER THAN THE MANAGER ITSELF SHALL ALSO INURE TO THE BENEFIT OF
SUCH OTHER INDEMNITEES AND THEIR SUCCESSORS AND ASSIGNS.
7.
AMENDMENTS AND WAIVERS. NO AMENDMENT OR
WAIVER OF ANY TERM, PROVISION OR CONDITION OF THIS AGREEMENT WILL BE EFFECTIVE,
UNLESS IN WRITING AND EXECUTED BY THE MANAGER AND THE COMPANY (OR THEIR
RESPECTIVE SUCCESSORS). NO WAIVER ON ANY ONE OCCASION WILL EXTEND TO OR EFFECT
OR BE CONSTRUED AS A WAIVER OF ANY RIGHT OR REMEDY ON ANY FUTURE OCCASION. NO
COURSE OF DEALING OF ANY PERSON NOR ANY DELAY OR OMISSION IN EXERCISING ANY
RIGHT OR REMEDY WILL CONSTITUTE AN AMENDMENT OF THIS AGREEMENT OR A WAIVER OF
ANY RIGHT OR REMEDY OF ANY PARTY HERETO.
8.
GOVERNING LAW; JURISDICTION.
(A)
CHOICE OF LAW. THIS AGREEMENT AND ALL
MATTERS ARISING UNDER OR RELATED TO THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(B)
CONSENT TO JURISDICTION. EACH OF THE PARTIES
AGREES THAT ALL ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF, BASED UPON OR
RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK,
CITY OF NEW YORK, COUNTY OF NEW YORK. EACH OF THE PARTIES HERETO BY EXECUTION
HEREOF (I) HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE FEDERAL AND
STATE COURTS IN THE STATE OF NEW YORK, CITY OF NEW YORK, COUNTY OF NEW YORK FOR
THE