overnight delivery service,
shall be rebuttable evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
(C)
WAIVERS.
NO WAIVER BY ANY PARTY OF ANY
DEFAULT WITH RESPECT TO ANY PROVISION, CONDITION OR REQUIREMENT OF THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTINUING WAIVER IN THE FUTURE OR A WAIVER OF
ANY OTHER PROVISION, CONDITION OR REQUIREMENT HEREOF, NOR SHALL ANY DELAY OR
OMISSION OF ANY PARTY TO EXERCISE ANY RIGHT HEREUNDER IN ANY MANNER IMPAIR THE
EXERCISE OF ANY SUCH RIGHT ACCRUING TO IT THEREAFTER.
THE REPRESENTATIONS AND
WARRANTIES AND THE AGREEMENTS AND COVENANTS OF THE COMPANY AND THE SAFEGUARD
ENTITIES CONTAINED HEREIN SHALL SURVIVE THE CLOSING.
11
(D)
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND
THE SAME AGREEMENT, IT BEING UNDERSTOOD THAT ALL PARTIES NEED NOT SIGN THE SAME
COUNTERPART.
(E)
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER
WITH THE LOAN AGREEMENT AND THE AGREEMENTS AND DOCUMENTS CONTEMPLATED HEREBY AND
THEREBY, CONTAINS THE ENTIRE UNDERSTANDING AND AGREEMENT OF THE PARTIES HERETO
AND SUPERSEDES ANY PRIOR UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS BY OR
AMONG THE PARTIES HERETO, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION,
(I) EACH OF THE AGREEMENTS LISTED ON EXHIBIT
A-1 HERETO (WHICH AGREEMENTS SHALL
BE OF NO FURTHER FORCE AND EFFECT AFTER THE DATE HEREOF) AND (II) THE APPLICABLE
PROVISIONS FOR THE GRANTING OF REGISTRATION RIGHTS CONTAINED IN THE AGREEMENTS
LISTED ON EXHIBIT A-2 HERETO (WHICH PROVISIONS SHALL BE OF NO FURTHER FORCE AND
EFFECT AFTER THE DATE HEREOF), AND MAY NOT BE MODIFIED, AMENDED OR TERMINATED
EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BOTH PARTIES.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, EACH SAFEGUARD ENTITY ACKNOWLEDGES AND AGREES THAT
IT WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE LIQUIDATED DAMAGES (OR ANY OTHER
DAMAGES) AND ANY OTHER REMEDIES AVAILABLE TO IT UNDER ANY OF THE AGREEMENTS
LISTED ON EXHIBIT A-1 OR A-2 (WHETHER ACCRUING PRIOR TO, ON OR AFTER THE DATE
HEREOF) AS A RESULT OF THE COMPANY'S FAILURE TO DATE TO MAINTAIN THE
EFFECTIVENESS OF REGISTRATION STATEMENTS COVERING THE REGISTRABLE SECURITIES
THEREUNDER.
(F)
JURISDICTION.
THE COMPANY AND EACH
SAFEGUARD ENTITY (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT, COURTS OF THE STATE OF DELAWARE AND OTHER
COURTS OF THE UNITED STATES SITTING IN NEW CASTLE COUNTY, DELAWARE FOR THE
PURPOSES OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND (II) HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH SUIT
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURT, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER.
THE COMPANY AND EACH SAFEGUARD ENTITY CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF TO