same address.
SECTION 10.
MISCELLANEOUS.
10.1
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT
CONTAINS ALL OF THE TERMS AND CONDITIONS AGREED UPON BY THE PARTIES HERETO IN
CONNECTION WITH THE SUBJECT MATTER HEREOF.
THIS AGREEMENT MAY NOT BE AMENDED,
MODIFIED OR CHANGED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY ALL OF THE PARTIES
HERETO.
10.2
ASSIGNMENT; SUCCESSORS.
THIS AGREEMENT SHALL NOT
BE ASSIGNED AND IS NOT ASSIGNABLE BY ANY PARTY WITHOUT THE PRIOR WRITTEN CONSENT
OF EACH OF THE OTHER PARTIES HERETO; PROVIDED, HOWEVER, THAT YUCAIPA MAY ASSIGN,
WITHOUT THE PRIOR CONSENT OF THE COMPANY, ITS RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT TO ANY PARTNERSHIP OR LIMITED LIABILITY COMPANY CONTROLLED BY, OR
UNDER COMMON CONTROL WITH, YUCAIPA, EXCEPT THAT NO SUCH ASSIGNMENT SHALL RELIEVE
YUCAIPA OF ANY OF ITS OBLIGATIONS HEREUNDER, AND PROVIDED FURTHER, THAT YUCAIPA
MAY ASSIGN THE RIGHT TO RECEIVE ANY PAYMENT HEREUNDER (BUT NOT ITS DUTIES AND
OBLIGATIONS HEREUNDER) TO ANY OTHER PERSON OR ENTITY.
SUBJECT TO THE PRECEDING
SENTENCE, THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING UPON THE
PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS.
10.3
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
10.4
ATTORNEYS' FEES.
IF ANY LEGAL ACTION IS BROUGHT
CONCERNING ANY MATTER RELATING TO THIS AGREEMENT, OR BY REASON OF ANY BREACH OF
ANY COVENANT, CONDITION OR AGREEMENT REFERRED TO HEREIN, THE PREVAILING PARTY
SHALL BE ENTITLED TO HAVE AND RECOVER FROM THE OTHER PARTY TO THE ACTION ALL
COSTS AND EXPENSES OF SUIT, INCLUDING ATTORNEYS' FEES.
10.5
RELATIONSHIP.
NOTHING IN THIS AGREEMENT SHALL
CONSTITUTE OR BE CONSTRUED TO BE A PARTNERSHIP OR JOINT VENTURE BETWEEN THE
COMPANY AND YUCAIPA.
TO THE EXTENT APPROPRIATE TO THE DUTIES AND OBLIGATIONS
HEREUNDER, YUCAIPA SHALL BE AN INDEPENDENT CONTRACTOR AND NONE OF ITS EMPLOYEES
SHALL BE DEEMED EMPLOYEES OF THE COMPANY BY REASON OF THIS AGREEMENT OR THE
PERFORMANCE OF ITS DUTIES HEREUNDER.
THIS AGREEMENT IS FOR THE BENEFIT OF THE
COMPANY AND YUCAIPA AND SHALL NOT CREATE THIRD PARTY BENEFICIARY RIGHTS.
10.6
CONSTRUCTION AND INTERPRETATION.
THIS AGREEMENT
SHALL NOT BE CONSTRUED FOR OR AGAINST EITHER PARTY BY REASON OF THE AUTHORSHIP
OR ALLEGED AUTHORSHIP OF ANY PROVISION HEREOF OR BY REASON OF THE STATUS OF THE
RESPECTIVE PARTIES.
THIS AGREEMENT SHALL BE CONSTRUED REASONABLY TO CARRY OUT
ITS INTENT WITHOUT PRESUMPTION AGAINST OR IN FAVOR OF EITHER PARTY.
THE NATURAL
PERSONS EXECUTING THIS AGREEMENT ON BEHALF OF EACH PARTY HAVE THE FULL RIGHT,
POWER AND AUTHORITY TO DO AND AFFIRM THE FOREGOING WARRANTY ON BEHALF OF EACH
PARTY AND ON THEIR OWN BEHALF.
THE CAPTIONS ON SECTIONS ARE PROVIDED FOR
PURPOSES OF CONVENIENCE AND ARE NOT INTENDED TO LIMIT, DEFINE THE SCOPE OF OR
AID IN INTERPRETATION OF ANY OF THE PROVISIONS HEREOF.
REFERENCES TO A PARTY OR
PARTIES SHALL REFER TO THE COMPANY OR YUCAIPA, OR BOTH, AS THE CONTEXT MAY
REQUIRE.
ALL PRONOUNS AND SINGULAR OR