delivered to a courier, if delivered by commercial one-day
overnight courier service or (z) when sent, if sent by facsimile, with an
acknowledgment of sending being produced by the sending facsimile machine.
SECTION 6.4
SEVERABILITY. IF ANY TERM OR
OTHER PROVISION OF THIS AGREEMENT IS INVALID, ILLEGAL OR INCAPABLE OF BEING
ENFORCED BY ANY RULE OR LAW, OR PUBLIC POLICY, ALL OTHER CONDITIONS AND
PROVISIONS OF THIS AGREEMENT SHALL NEVERTHELESS REMAIN IN FULL FORCE AND EFFECT
SO LONG AS THE ECONOMIC OR LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED
HEREBY IS NOT AFFECTED IN ANY MANNER MATERIALLY ADVERSE TO ANY PARTY. UPON SUCH
DETERMINATION THAT ANY TERM OR OTHER
15
PROVISION IS INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED, THE PARTIES HERETO
SHALL NEGOTIATE IN GOOD FAITH TO MODIFY THIS AGREEMENT SO AS TO EFFECT THE
ORIGINAL INTENT OF THE PARTIES HERETO AS CLOSELY AS POSSIBLE IN AN ACCEPTABLE
MANNER TO THE END THAT TRANSACTIONS CONTEMPLATED HEREBY ARE FULFILLED TO THE
EXTENT POSSIBLE.
SECTION 6.5
ENTIRE AGREEMENT. THIS
AGREEMENT, INCLUDING THE ANNEXES HERETO AND THE OTHER AGREEMENTS AND DOCUMENTS
REFERENCED HEREIN OR CONTEMPLATED HEREBY (INCLUDING THE TRANSACTION AGREEMENTS),
CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES HERETO WITH
RESPECT TO THE MATTERS HEREIN SET FORTH, AND ALL PRIOR NEGOTIATIONS AND
UNDERSTANDINGS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT ARE MERGED
HEREIN AND ARE SUPERSEDED AND CANCELED BY THIS AGREEMENT.
SECTION 6.6
COUNTERPARTS. THIS AGREEMENT
MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED
ONE AND THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN ONE OR MORE
COUNTERPARTS HAVE BEEN SIGNED BY EACH OF THE PARTIES HERETO AND DELIVERED TO THE
OTHER PARTIES HERETO.
SECTION 6.7
AMENDMENTS; WAIVER. AMENDMENTS
TO THIS AGREEMENT MAY BE MADE FROM TIME TO TIME, PROVIDED, HOWEVER, THAT NO
AMENDMENT, MODIFICATION OR WAIVER OF THIS AGREEMENT OR ANY PROVISION HEREOF
SHALL BE VALID OR EFFECTIVE UNLESS IN WRITING AND SIGNED BY THE PARTIES HERETO.
NO CONSENT TO, OR WAIVER, DISCHARGE OR RELEASE (EACH, A "WAIVER") OF, ANY
PROVISION OF OR BREACH UNDER THIS AGREEMENT SHALL BE VALID OR EFFECTIVE UNLESS
IN WRITING AND SIGNED BY THE PARTY GIVING SUCH WAIVER, AND NO SPECIFIC WAIVER
SHALL CONSTITUTE A WAIVER WITH RESPECT TO ANY OTHER PROVISION OR BREACH, WHETHER
OR NOT OF SIMILAR NATURE. FAILURE ON THE PART OF ANY PARTY HERETO TO INSIST IN
ANY INSTANCE UPON STRICT, COMPLETE AND TIMELY PERFORMANCE BY ANOTHER PARTY
HERETO OF ANY PROVISION OF OR OBLIGATION UNDER THIS AGREEMENT SHALL NOT
CONSTITUTE A WAIVER BY SUCH PARTY OF ANY OF ITS RIGHTS UNDER THIS AGREEMENT OR
OTHERWISE.
SECTION 6.8
GOVERNING LAW; JURISDICTION;
VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF. EACH PARTY HERETO IRREVOCABLY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF (A) THE SUPREME COURT OF THE STATE OF NEW YORK,