This excerpt taken from the ZZ 8-K filed May 19, 2009.
THE AGREEMENT AND THIS CONFIRMATION AND ALL DISPUTES ARISING THEREFROM AND RELATED THERETO WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE). EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF U.S. FEDERAL AND NEW YORK STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY IN CONNECTION WITH ALL PROCEEDINGS ARISING OUT OF OR RELATING TO THE AGREEMENT AND THIS CONFIRMATION.
(h) Third Party Rights. This Confirmation is not intended and shall not be construed to create any rights in any person other than the Company, Parent, Purchaser and their respective successors and assigns and no other person shall assert any rights as third-party beneficiary hereunder. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements herein contained by or on behalf of the Company, Parent and Purchaser shall bind, and inure to the benefit of, their respective successors and assigns whether so expressed or not.
(i) Waiver of Rights. Any provision of this Confirmation may be waived if, and only if, such waiver is in writing and signed by the party or parties against whom the waiver is to be effective.
(j) 10b5-1. The parties intend for any settlement hereof to comply with the requirements of Rule 10b5-1(c)(1)(i)(A) under the Exchange Act and this Confirmation to constitute a binding contract or instruction satisfying the requirements of such 10b5-1(c) and to be interpreted to comply with the requirements of such Rule 10b5-1(c).
(k) Securities Contract; Swap Agreement. Purchaser hereto intends itself to be a financial institution, swap participant and financial participant within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the Bankruptcy Code (the Bankruptcy Code). The parties hereto further agree and acknowledge that they intend for (A) this Confirmation to be (i) a securities contract, as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a settlement payment, as such term is defined in Section 741(8) of the Bankruptcy Code or a margin payment within the meaning of Section 741(5) of the Bankruptcy Code, and (ii) a swap agreement, as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder is a transfer, as such term is defined in Section 101(54) of the Bankruptcy Code, and (B) that Purchaser is entitled to the protections afforded by, among other sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code. The provisions set forth in this paragraph are intended by the parties to apply solely to the Share Forward Transaction as evidenced by this Confirmation and not to any other contractual arrangement referred to herein or in any other agreement or instrument that the parties may separately enter into from time to time, including without limitation the ABL, the First Lien Notes and the Convertible Notes.