AND (B)
SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS UNDERSTANDINGS, CONDITIONS AND
AGREEMENTS, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, IN RESPECT OF THE
SUBJECT MATTER HEREOF.
THE COMPANY ACKNOWLEDGES AND AGREES THAT NONE OF THE
EQUITY SPONSORS MAKES ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THIS
AGREEMENT OR ITS PROVISION OF THE INITIAL SERVICES.
THE COMPANY AGREES THAT ANY
ACKNOWLEDGMENT OR AGREEMENT MADE BY THE COMPANY IN THIS AGREEMENT IS MADE ON
BEHALF OF THE COMPANY AND THE OTHER MEMBERS OF THE COMPANY GROUP.
6.
COUNTERPARTS; AMENDMENTS AND WAIVERS.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL AND WHICH TOGETHER SHALL CONSTITUTE ONE AGREEMENT.
THIS AGREEMENT MAY
NOT BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED, AND NO PROVISION
OF THIS AGREEMENT MAY BE WAIVED, OTHER THAN IN A WRITING DULY EXECUTED BY THE
PARTIES HERETO.
7.
BINDING EFFECT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES TO THIS AGREEMENT AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS; PROVIDED THAT (I) NEITHER THIS AGREEMENT NOR ANY RIGHT,
INTEREST OR OBLIGATION HEREUNDER MAY BE ASSIGNED BY EITHER PARTY, WHETHER BY
OPERATION OF LAW OR OTHERWISE, WITHOUT THE EXPRESS WRITTEN CONSENT OF THE OTHER
PARTY HERETO AND (II) ANY ASSIGNMENT BY ANY EQUITY SPONSOR OF ITS RIGHTS UNDER
THIS AGREEMENT TO ANY ENTITY DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY
OR UNDER COMMON CONTROL WITH SUCH EQUITY SPONSOR SHALL BE EXPRESSLY PERMITTED
HEREUNDER AND SHALL NOT REQUIRE THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES
HERETO.
THIS AGREEMENT IS NOT INTENDED TO CONFER ANY RIGHT OR REMEDY HEREUNDER
UPON ANY PERSON OR ENTITY OTHER THAN THE PARTIES TO THIS AGREEMENT AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
8.
GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS TO THE
EXTENT THAT SUCH PRINCIPLES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION.
EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY (A) AGREES THAT ANY LEGAL SUIT, ACTION OR PROCEEDING BROUGHT BY
ANY PARTY HERETO ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY MAY BE BROUGHT IN ANY COURT OF THE STATE OF NEW YORK OR
FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN THE
CITY, COUNTY AND STATE OF NEW YORK
3
(EACH, A "NEW YORK COURT"), (B) WAIVES, TO THE FULLEST EXTENT THAT IT MAY
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUCH PROCEEDING BROUGHT IN A NEW YORK COURT, AND ANY CLAIM THAT
ANY SUCH ACTION OR PROCEEDING BROUGHT IN A NEW YORK COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, (C) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW
YORK COURT IN ANY SUIT, ACTION OR PROCEEDING AND (D) ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT