whichever first occurs, (ii) if
telecopied, when transmitted and a confirmation is received, provided the same
is on a Business Day and, if not, on the next Business Day or (iii) if delivered
by messenger or overnight courier, upon delivery, provided the same is on a
Business Day and, if not, on the next Business Day.
6.4 Counterparts.
This Agreement may be executed by the parties hereto in
several counterparts, and each such counterpart shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
6.5 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
THIS AGREEMENT AND THE
OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
EACH OF THE PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING
TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT;
PROVIDED THAT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT OF COMPETENT JURISDICTION LOCATED OUTSIDE OF NEW
YORK COUNTY, NEW YORK.
EACH OF THE PARTIES HERETO EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
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SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION WHICH IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS.
6.6 MUTUAL WAIVER OF JURY TRIAL.
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED
THERETO.
6.7 Amendments.
No amendment or waiver of any provision of this Agreement, and
no consent to any departure by any Person from the terms hereof, shall in any
event be effective unless it is in writing and signed by each Agent.
In no
event shall the consent of any Obligor be required in connection with any
amendment or other modification of this Agreement, unless such amendment or
other modification imposes any additional obligations or changes any existing
obligations of such Obligor under this Agreement.
6.8 No Waiver.
No failure or delay on the part of any Secured Creditor in
exercising any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right.
6.9 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in