OF LAW OR OTHERWISE, SUCH TRANSFER RESTRICTED NOTES
SHALL BE HELD SUBJECT TO ALL OF THE TERMS OF THIS AGREEMENT, AND BY TAKING AND
HOLDING SUCH TRANSFER RESTRICTED NOTES, SUCH PERSON SHALL BE CONCLUSIVELY DEEMED
TO HAVE AGREED TO BE BOUND BY AND TO PERFORM ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT AND SUCH PERSON SHALL BE ENTITLED TO RECEIVE THE BENEFITS HEREOF.
(E)
THIRD PARTY BENEFICIARY.
EACH HOLDER SHALL
BE A THIRD PARTY BENEFICIARY OF THE AGREEMENTS MADE HEREUNDER BETWEEN THE
COMPANY, ON THE ONE HAND, AND THE INITIAL PURCHASERS, ON THE OTHER HAND, AND
SHALL HAVE THE RIGHT TO ENFORCE SUCH AGREEMENTS DIRECTLY TO THE EXTENT IT DEEMS
SUCH ENFORCEMENT NECESSARY OR ADVISABLE TO PROTECT ITS RIGHTS OR THE RIGHTS OF
HOLDERS HEREUNDER.
(F)
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL
25
BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE
AND THE SAME AGREEMENT.
(G)
HEADINGS.
THE HEADINGS IN THIS AGREEMENT
ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT
THE MEANING HEREOF.
(H)
GOVERNING LAW AND SUBMISSION TO
JURISDICTION.
THIS AGREEMENT, THE NOTES, THE EXCHANGE NOTES AND THE PRIVATE
EXCHANGE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
NO PROCEEDING RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY MAY BE COMMENCED, PROSECUTED OR CONTINUED IN
ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND
COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE JURISDICTION OVER THE ADJUDICATION
OF SUCH MATTERS, AND THE COMPANY HEREBY CONSENTS TO THE JURISDICTION OF SUCH
COURTS AND PERSONAL SERVICE WITH RESPECT THERETO.
THE COMPANY HEREBY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
THE COMPANY
AGREES THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING BROUGHT IN ANY SUCH COURT
SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED IN ANY
OTHER COURTS IN THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE SUBJECT, BY
SUIT UPON SUCH JUDGMENT.
(I)
SEVERABILITY.
IN THE EVENT THAT ANY ONE
OR MORE OF THE PROVISIONS CONTAINED HEREIN, OR THE APPLICATION THEREOF IN ANY
CIRCUMSTANCE, IS HELD INVALID, ILLEGAL OR UNENFORCEABLE, THE VALIDITY, LEGALITY
AND ENFORCEABILITY OF ANY SUCH PROVISION IN EVERY OTHER RESPECT AND OF THE
REMAINING PROVISIONS CONTAINED HEREIN SHALL NOT BE AFFECTED OR IMPAIRED THEREBY.
(J)
NOTES HELD BY THE COMPANY OR ANY OF ITS
AFFILIATES.
WHENEVER THE CONSENT OR APPROVAL OF HOLDERS OF A SPECIFIED
PERCENTAGE OF TRANSFER RESTRICTED NOTES IS REQUIRED HEREUNDER, TRANSFER
RESTRICTED NOTES HELD BY THE COMPANY OR ANY OF THE COMPANY'S AFFILIATES (AS SUCH
TERM IS DEFINED IN RULE 405