- 2 -     (e) the Liens set forth on Schedule 7.4 to the Loan Agreement (except to the extentthat Lender requires the discharge thereof prior to the advance of the initial Revolving Loanspursuant to the Loan Agreement); and     (f) Liens to secure Permitted Inter-Company Debt.**SECTION 2.****JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW**     2.1 **Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver**.     (a) The validity, interpretation and enforcement of this Agreement and any dispute arising outof the relationship between the parties hereto, whether in contract, tort, equity or otherwise,shall be governed by the internal laws of the State of Illinois but excluding any principles ofconflicts of law or other rule of law that would cause the application of the law of anyjurisdiction other than the laws of the State of Illinois.     (b) Debtor, Lender and US Collateral Agent irrevocably consent and submit to the non-exclusivejurisdiction of the Circuit Court of Cook County, Illinois and the United States District Court forthe Northern District of Illinois, whichever Lender or US Collateral Agent may elect, and waive anyobjection based on venue or *forum non conveniens*with respect to any action instituted thereinarising under this Agreement or any of the other Financing Agreements or in any way connected withor related or incidental to the dealings of the parties hereto in respect of this Agreement or anyof the other Financing Agreements or the transactions related hereto or thereto, in each casewhether now existing or hereafter arising, and whether in contract, tort, equity or otherwise, andagree that any dispute with respect to any such matters shall be heard only in the courts describedabove (except that Lender and US Collateral Agent shall have the right to bring any action orproceeding against Debtor or its property in the courts of any other jurisdiction which they deemnecessary or appropriate to enforce their rights against Debtor or its property).     (c) Debtor hereby waives personal service of any and all process upon it and consents that allsuch service of process may be made by certified mail (return receipt requested) directed to itsaddress set forth below and service so made shall be deemed to be completed five (5) days after thesame shall have been so deposited in the U.S. mails, or, at Lender’s or US Collateral Agent’soption, by service upon Debtor in any other manner provided under the rules of any such courts.Within thirty (30) days after such service, Debtor shall appear in answer to such process, failingwhich Debtor shall be deemed in default and judgment may be entered by Lender or US CollateralAgent against Debtor for the amount of the claim and other relief requested.     (d) DEBTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OFACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (2) IN ANY WAYCONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF DEBTOR, LENDER AND US COLLATERAL AGENTIN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATEDHERETO OR THERETO IN EACH CASE WHETHER NOW

 

- 3 -EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. DEBTORHEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDEDBY COURT TRIAL WITHOUT A JURY AND THAT DEBTOR, LENDER OR US COLLATERAL AGENT MAY FILE AN ORIGINALCOUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OFDEBTOR, LENDER AND US COLLATERAL AGENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.     (e) Lender and US Collateral Agent shall not have any liability to Debtor (whether in tort,contract, equity or otherwise) for losses suffered by Debtor in connection with, arising out of, orin any way related to the transactions or relationships contemplated by this Agreement, or any act,omission or event occurring in connection herewith, unless it is determined by a final andnon-appealable judgment or court order binding on Lender and US Collateral Agent that the losseswere the result of acts or omissions of Lender and US Collateral Agent constituting grossnegligence or willful misconduct. In any such litigation, each of Lender and US Collateral Agentshall be entitled to the benefit of the rebuttable presumption that it acted in good faith and withthe exercise of ordinary care in the performance by it of the terms of this Agreement and the otherFinancing Agreements.     2.2 **Waiver of Notices**. Debtor hereby expressly waives demand, presentment, protestand notice of protest and notice of dishonor with respect to this Agreement, except such as areexpressly provided for herein. No notice to or demand on Debtor which Lender or US CollateralAgent may elect to give shall entitle Debtor to any other or further notice or demand in the same,similar or other circumstances.     2.3 **Amendments and Waivers**. Neither this Agreement nor any provision hereof shall beamended, modified, waived or discharged orally or by course of conduct, but only by a writtenagreement signed by an authorized officer of Lender and US Collateral Agent, and as to amendments,as also signed by an authorized officer of Debtor. Lender and US Collateral Agent shall not, byany act, delay, omission or otherwise be deemed to have expressly or impliedly waived any of theirrights, powers and/or remedies unless such waiver shall be in writing and signed by an authorizedofficer of Lender or US Collateral Agent. Any such waiver shall be enforceable only to the extentspecifically set forth therein. A waiver by Lender or US Collateral Agent of any right, powerand/or remedy on any one occasion shall not be construed as a bar to or waiver of any such right,power and/or remedy which either would otherwise have on any future occasion, whether similar inkind or otherwise.     2.4 **Indemnification**. Debtor shall indemnify and hold Lender, US Collateral Agent,Secured Parties, and their respective directors, agents, employees and counsel (collectively,“**Indemnified Parties**”), harmless from and against any and all losses, claims, damages, liabilities,costs or expenses imposed on, incurred by or asserted against any of them in connection with anylitigation, investigation, claim or proceeding commenced or threatened related to the negotiation,preparation, execution, delivery, enforcement, performance or administration of this Agreement, anyother Financing Agreements, or any undertaking or proceeding related to any of the transactionscontemplated hereby or any act, omission, event or transaction related or attendant thereto,including amounts paid in settlement, court costs, and the

 

- 4 -fees and expenses of counsel. To the extent that the undertaking to indemnify, pay and holdharmless set forth in this Section may be unenforceable because it violates any law or publicpolicy, Debtor shall pay the maximum portion which it is permitted to pay under applicable law toIndemnified Parties in satisfaction of indemnified matters under this Section. To the extentpermitted by applicable law, Debtor shall not assert, and Debtor hereby waives, any claim againstIndemnified Parties, on any theory of liability, for special, indirect, consequential or punitivedamages (as opposed to direct or actual damages) arising out of, in connection with, or as a resultof, this Agreement, any of the other Financing Agreements or any undertaking or transactioncontemplated hereby. The foregoing indemnity shall survive the payment of the Obligations and thetermination or non-renewal of the Loan Agreement.**SECTION 3.****MISCELLANEOUS**     3.1 **Interpretative Provisions**.     (a) Capitalized terms used but not defined herein shall have the meanings given to them in theLoan Agreement.     (b) All references to Debtor, Lender, US Collateral Agent, Borrower, Secured Parties andIndemnified Parties herein, or to any other person herein, shall include their respectivesuccessors and assigns.     (c) The words “**hereof**”, “**herein**”, “**hereunder**”, “**this Agreement**” and words of similar importwhen used in this Agreement shall refer to this Agreement as a whole and not any particularprovision of this Agreement and as this Agreement now exists or may hereafter be amended, modified,supplemented, extended, renewed, restated or replaced.     (d) All references to the term “**good faith**” used herein when applicable to Lender or USCollateral Agent shall mean, notwithstanding anything to the contrary contained herein or in theUCC, honesty in fact in the conduct or transaction concerned. Debtor shall have the burden ofproving any lack of good faith on the part of Lender or US Collateral Agent alleged by Debtor atany time.     (e) Unless otherwise expressly provided herein, (i) references herein to any agreement,document or instrument shall be deemed to include all subsequent amendments, modifications,supplements, extensions, renewals, restatements or replacements with respect thereto, but only tothe extent the same are not prohibited by the terms hereof or of any other Financing Agreement, and(ii) references to any statute or regulation are to be construed as including all statutory andregulatory provisions consolidating, amending, replacing, recodifying, supplementing orinterpreting the statute or regulation.     (f) The captions and headings of this Agreement are for convenience of reference only andshall not affect the interpretation of this Agreement.     (g) This Agreement and the other Financing Agreements are the result of negotiations among andhave been reviewed by counsel to Lender and US Collateral Agent and the other parties, and are theproducts of all parties. Accordingly, this Agreement and the other Financing

 

- 5 -Agreements shall not be construed against Lender and US Collateral Agent merely because ofLender’s and US Collateral Agent’s involvement in their preparation.     3.2 **Notices**. All notices, requests and demands hereunder shall be in writing anddeemed to have been given or made: if delivered in person, immediately upon delivery; if by telex,telegram or facsimile transmission, immediately upon sending and upon confirmation of receipt; ifby nationally recognized overnight courier service with instructions to deliver the next businessday, one (1) Business Day after sending; and if by certified mail, return receipt requested, five(5) days after mailing. All notices, requests and demands upon the parties are to be given to thefollowing addresses (or to such other address as any party may designate by notice in accordancewith this Section):   **If to Debtor**: 7480 Mission Valley Road, Suite 101  San Diego, California 92108  Attention: Whitney Peterson  Telephone No.: (619) 683-9830  Telecopy No.: (619) 683-9829   **If to Lender and US Collateral Agent**: Wachovia Capital Finance Corporation (Central)  150 South Wacker Drive, Suite 2200  Chicago, Illinois 60606-4401  Attention: Portfolio Manager  Telephone No.: 312-332-0420  Telecopy No.: 312-332-0424     3.3 **Partial Invalidity**. If any provision of this Agreement is held to be invalid orunenforceable, such invalidity or unenforceability shall not invalidate this Agreement as a whole,but this Agreement shall be construed as though it did not contain the particular provision held tobe invalid or unenforceable and the rights and obligations of the parties shall be construed andenforced only to such extent as shall be permitted by applicable law.     3.4 **Successors**. This Agreement, the other Financing Agreements and any other documentreferred to herein or therein shall be binding upon Debtor and its successors and assigns and inureto the benefit of and be enforceable by Lender and US Collateral Agent and their respectivesuccessors and assigns, except that Debtor may not assign its rights under this Agreement, theother Financing Agreements and any other document referred to herein or therein without the priorwritten consent of Lender and US Collateral Agent.     3.5 **Entire Agreement**. This Agreement, the other Financing Agreements, any supplementshereto or thereto, and any instruments or documents delivered or to be delivered in connectionherewith or therewith represents the entire agreement and understanding concerning the subjectmatter hereof and thereof between the parties hereto, and supersede all other prior agreements,understandings, negotiations and discussions, representations, warranties, commitments, proposals,offers and contracts concerning the subject matter hereof, whether oral or written.

 

- 6 -     **IN WITNESS WHEREOF**, Debtor, US Collateral Agent and Lender each has caused these presents tobe duly executed as of the day and year first above written.      **SAITEK ELEKTRONIK VERTRIEBS GMBH**