American Home Shield 2009 Annual Report Download - page 205

govern the arbitration, except as they may be modified herein or by mutual written agreement of the parties. If no disputed claim or
counterclaim exceeds $250,000, not including interest or attorneys' fees, the JAMS Streamlined Arbitration Rules and Procedures
("JAMS Streamlined Rules") in effect at the time of the arbitration shall govern the arbitration, except as they may be modified herein
or by mutual written agreement of the parties.
(b) The seat of the arbitration shall be New York, New York. The parties submit to jurisdiction in the state and federal
courts of the State of New York for the limited purpose of enforcing this agreement to arbitrate.
(c) The arbitration shall be conducted by one neutral arbitrator unless the parties agree otherwise. The parties agree to
seek to reach agreement on the identity of the arbitrator within thirty (30) days after the initiation of arbitration. If the parties are
unable to reach agreement on the identity of the arbitrator within such time, then the appointment of the arbitrator shall be made in
accordance with the process set forth in JAMS Comprehensive Rule 15.
(d) The arbitration award shall be in writing, state the reasons for the award, and be final and binding on the parties. The
arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the attorneys'
feesof the prevailing party. Judgment on the award may be entered by any court having jurisdiction thereof or having jurisdiction over
the relevant party or its assets. Notwithstanding applicable state law, the arbitration and this agreement to arbitrate shall be governed
by the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
(e) The parties agree that the arbitration shall be keptconfidential and that the existence of the proceeding and any
element of it (including but not limited to any pleadings, briefs or other documents submitted or exchanged, any testimony or other
oral submissions, and any awards) shall not be disclosed beyond the tribunal, JAMS, the parties, their counsel, accountants and
auditors, insurers and re-insurers, and any person necessary to the conduct of the proceeding. The confidentiality obligations shall not
apply (i) if disclosure is required by law, or in judicial or administrative proceedings, or (ii) as far as disclosure is necessary to enforce
the rights arising out of the award.
8. Governing Law. This Agreement shall be governed in all respects, including validity, interpretation and effect, by
the law of the State of New York, regardless of the law that might be applied under principles of conflict of laws to the extent such
principles would require or permit the application of the laws of another jurisdiction.
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9. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
10. Successors; Binding Effect. Each Indemnifying Party will require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business and assets of such Indemnifying
Party, by agreement in form and substance satisfactory to Manager, CD&R Inc., CD&R LP, the Investor, the Other Investors and their
counsel, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that such Indemnifying
Party would be required to perform if no such succession had taken place. This Agreement shall be binding upon and inure to the
benefit of each party hereto and its successors and permitted assigns, and each other Indemnitee, but neither this Agreement nor any
right, interest or obligation hereunder shall be assigned, whether by operation of law or otherwise, by the Company Entities without
the prior written consent of Manager, CD&R Inc., CD&R LP, the Investor and the Other Investors.
11. Miscellaneous. The headings contained in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. This Agreement is not intended to confer any right or remedy hereunder upon
any Person other than each of the parties hereto and their respective successors and permitted assigns and each other Indemnitee. No
amendment, modification, supplement or discharge of this Agreement, and no waiver hereunder shall be valid and binding unless set
forth in writing and duly executed by the party or other Indemnitee against whom enforcement of the amendment, modification,
supplement or discharge is sought. Neither the waiver by any of the parties hereto or any other Indemnitee of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any party hereto or any other Indemnitee on one or more occasions,
to enforce any of the provisions of this Agreement or to exercise any right, powers or privilege hereunder, shall be construed as a
waiver of any other breach or default of a similar nature, or as a waiver of any provisions hereof, or any rights, powers or privileges
hereunder. The rights, indemnities and remedies herein provided are cumulative and are not exclusive of any rights, indemnities or
remedies that any party or other Indemnitee may otherwise have by contract, at law or in equity or otherwise, provided that (i) to the
extent that any Indemnitee is entitled to be indemnified by any member of the Company Group and by any other Indemnitee or any
insurer under a policy procured by any Indemnitee, the obligations of the members of the Company Group hereunder shall be primary
and the obligations of such other Indemnitee or insurer secondary, and (ii) no member of the Company Group shall be entitled to
contribution or indemnification from or subrogation against such other Indemnitee or insurer. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same
instrument.
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