(and any amendments, supplements or modifications thereto) or
an affirmative vote to accept the Plan submitted by any Commitment Party,
nothing contained in the Plan (including any amendments, supplements or
modifications thereto) or Confirmation Order (including any amendments,
supplements or modifications thereto) shall alter, amend or modify the rights of
the Commitment Parties under this Agreement unless such alteration, amendment or
modification has been made in accordance with Section 10.7.
Section 10.4
Governing Law; Venue.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH (A) THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD FOR ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD APPLY THE
LAWS OF ANY OTHER JURISDICTION, AND (B) TO THE EXTENT APPLICABLE, THE BANKRUPTCY
CODE.
THE PARTIES CONSENT AND AGREE THAT ANY ACTION TO ENFORCE THIS AGREEMENT
OR ANY DISPUTE, WHETHER SUCH DISPUTES ARISE IN LAW OR EQUITY, ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS
CONTEMPLATED HEREBY SHALL BE BROUGHT EXCLUSIVELY IN THE BANKRUPTCY COURT (OR,
SOLELY TO THE EXTENT THE BANKRUPTCY COURT DECLINES JURISDICTION OVER SUCH ACTION
OR DISPUTE, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK OR ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY).
THE PARTIES CONSENT
TO AND AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT.
EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE BANKRUPTCY COURT, (II) SUCH
PARTY OR SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY THE
BANKRUPTCY COURT OR (III) ANY LITIGATION OR
66
OTHER PROCEEDING COMMENCED IN THE BANKRUPTCY COURT IS BROUGHT IN AN INCONVENIENT
FORUM.
THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING TO AN ADDRESS PROVIDED IN WRITING
BY THE RECIPIENT OF SUCH MAILING, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY
LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY
OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 10.5
Waiver of Jury Trial.
EACH PARTY HEREBY WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY JURISDICTION IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE AMONG THE PARTIES UNDER THIS AGREEMENT, WHETHER
IN CONTRACT, TORT OR OTHERWISE.
Section 10.6
Counterparts.
This Agreement may be executed in
any number of counterparts, all of which will be considered one and the same
agreement and will become effective when counterparts have been signed by each
of the Parties and delivered to each other Party (including via facsimile or
other electronic transmission), it being understood that each Party need not
sign the same counterpart.
Any facsimile or electronic signature shall be
treated in all respects as having the same effect as having an original
signature.
Section 10.7
Waivers and Amendments; Rights Cumulative;
Consent.
This Agreement may