TERMINATED AS
IT RELATES TO SUCH PURCHASER, PROVIDED THAT, AS BETWEEN SUCH PURCHASER AND THE
TRUST, SECTIONS 4 AND 12 SHALL SURVIVE SUCH TERMINATION AND REMAIN IN FULL FORCE
AND EFFECT.
NO ACTION TAKEN PURSUANT TO THIS SECTION 10 SHALL RELIEVE SUCH
DEFAULTING PURCHASER FROM LIABILITY IN RESPECT OF SUCH DEFAULT.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE TERMINATION OF
THIS AGREEMENT AS IT RELATES TO A PURCHASER HEREUNDER AFFECT THE COMPLETION OF
THE TRANSACTIONS CONTEMPLATED HEREUNDER AS IT RELATES TO ANY OTHER PURCHASER.
FURTHER, NO PURCHASER, OTHER THAN THE DEFAULTING PURCHASER, SHALL HAVE ANY
LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO ANY TERMINATION OF THIS AGREEMENT
PURSUANT TO THIS SECTION 10.
12.
COUNTERPARTS; FACSIMILE.
THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
THIS AGREEMENT OR ANY COUNTERPART MAY BE EXECUTED VIA FACSIMILE
TRANSMISSION, AND ANY SUCH EXECUTED FACSIMILE COPY SHALL BE TREATED AS AN
ORIGINAL.
13.
GOVERNING LAW.
THIS AGREEMENT SHALL FOR ALL PURPOSES BE DEEMED TO
BE MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
THE PARTIES HEREBY AGREE THAT ANY ACTION, PROCEEDING OR CLAIM AGAINST
IT ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE BROUGHT AND
ENFORCED IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND IRREVOCABLY SUBMIT TO SUCH
JURISDICTION, WHICH JURISDICTION SHALL BE EXCLUSIVE.
THE PARTIES HEREBY WAIVE
ANY OBJECTION TO SUCH EXCLUSIVE JURISDICTION AND AGREE NOT TO PLEAD OR CLAIM
THAT SUCH COURTS REPRESENT AN INCONVENIENT FORUM.
14.
THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED
BY, ANY OTHER PERSON; PROVIDED THAT THE UNDERWRITERS SHALL BE THIRD PARTY
BENEFICIARIES OF THIS AGREEMENT.
15.
LEGENDS.
EACH CERTIFICATE, IF ANY, REPRESENTING THE PRIVATE
PLACEMENT COMMON SHARES SHALL BE ENDORSED WITH THE FOLLOWING LEGENDS OR A
SUBSTANTIALLY SIMILAR LEGENDS:
The shares represented by this certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be offered, sold,
pledged or otherwise transferred except pursuant to an
7
exemption from registration under the Act, or pursuant to an effective
registration statement under the Act.
The shares represented by this certificate are subject to the provisions of a
Registration Rights Agreement, dated as of August 4, 2009.
16.
SEVERABILITY.
IN CASE ANY PROVISION OF THIS AGREEMENT SHALL BE
FOUND BY A COURT OF LAW TO BE INVALID, ILLEGAL, OR UNENFORCEABLE, THE VALIDITY,
LEGALITY, AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL
NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY.
17.
SURVIVAL.
THE PROVISIONS OF SECTION 8 HEREOF SHALL SURVIVE THE