XM Radio 2009 Annual Report Download - page 86

covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated; provided, however, that nothing contained in this Section 31 will affect the
ability of the Company under the provisions of Section 27 to supplement or amend this Agreement to replace
such invalid, void or unenforceable term, provision, covenant or restriction with a legal, valid and enforceable
term, provision, covenant or restriction; provided further, however, that if such excluded provision shall affect
the rights, duties or obligations of the Rights Agent, the Rights Agent shall be entitled to resign two Business
Days following but not including the date on which such term, provision, covenant or restriction is found to be
invalid, void or unenforceable.
SECTION 32 Governing Law
This Agreement, each Right and each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts made and to be performed entirely within
such State; provided, however, that all provisions regarding the rights, duties and obligations of the Rights
Agent shall be governed by and construed in accordance with the laws of the State of New York applicable to
contracts made to be performed entirely within such State.
SECTION 33 Counterparts
This Agreement may be executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 34 Descriptive Headings; Interpretation
Descriptive headings of the several sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions hereof. For the avoidance of doubt
and for clarification purposes only, if under any circumstance contemplated herein Rights become exercisable
for the purchase of shares of Common Stock, such Rights may only be exercised as follows: Rights issued in
respect of Common Stock will be exercisable only for the purchase of shares of Common Stock (or any
common stock equivalents issued in respect thereof).
SECTION 35 Force Majeure
Notwithstanding anything to the contrary contained herein, the Rights Agent shall not be liable for any
delays or failures in performance resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or
malfunctions of computer facilities, or loss of data due to power failures or mechanical difficulties with
information storage or retrieval systems, labor difficulties, war or civil unrest.
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