THE COMPANY AND OPERATING AND EACH OF THEIR
AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
ADVISORS (EACH, A "COMPANY INDEMNIFIED PARTY") FROM AND AGAINST, AND SHALL PAY
ON DEMAND, ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL) THAT
MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY COMPANY INDEMNIFIED PARTY
BY A THIRD PARTY, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON
OF (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION,
LITIGATION OR PROCEEDING OR PREPARATION OF A DEFENSE IN CONNECTION THEREWITH)
ANY BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF THE
PURCHASER UNDER THIS AGREEMENT WITH RESPECT TO THE SERVICES AGREEMENT.
(C)
THE INDEMNIFYING PARTY WILL NOT, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE APPLICABLE INDEMNIFIED PARTY, AS APPLICABLE,
SETTLE, COMPROMISE, CONSENT TO THE ENTRY OF ANY JUDGMENT IN OR OTHERWISE SEEK TO
TERMINATE ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF WHICH
INDEMNIFICATION OF SUCH INDEMNIFIED PARTY MAY BE SOUGHT UNDER SUBSECTION (A) OF
THIS SECTION 9 UNLESS SUCH SETTLEMENT, COMPROMISE, CONSENT OR TERMINATION
INCLUDES A FULL AND UNCONDITIONAL RELEASE OF SUCH INDEMNIFIED PARTY FROM ANY AND
ALL CLAIMS AGAINST SUCH INDEMNIFIED PARTY AND ANY AND ALL LIABILITIES THEREOF
ARISING OUT OF OR RELATING TO SUCH ACTION, CLAIM, SUIT OR PROCEEDING.
11.
AMENDMENTS; WAIVERS. THE PROVISIONS OF THIS
AGREEMENT, INCLUDING THE PROVISIONS OF THIS SECTION, MAY NOT BE AMENDED,
MODIFIED OR SUPPLEMENTED, AND WAIVERS
15
OR CONSENTS TO DEPARTURES FROM THE PROVISIONS HEREOF MAY NOT BE GIVEN, WITHOUT
THE PRIOR WRITTEN CONSENT THERETO OF THE COMPANY, OPERATING AND THE PURCHASER.
12.
GOVERNING LAW. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO PROCESS BEING SERVED IN ANY ACTION, SUIT OR PROCEEDING BY
MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY
(WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES
TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD
AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
13.
INTERPRETATION. THE DESCRIPTIVE HEADINGS IN
THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE DEEMED TO
ALTER OR AFFECT THE MEANING OR INTERPRETATION OF ANY PROVISION OF THIS
AGREEMENT. THE PARTIES TO THIS AGREEMENT HAVE PARTICIPATED JOINTLY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT. IF AN AMBIGUITY OR