WHICH ARE APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED WHOLLY WITHIN SUCH STATE.
Section 13.8
WAIVER OF JURY TRIAL.
TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY
WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF, ANY OTHER FUNDAMENTAL DOCUMENT OR
THE SUBJECT MATTER THEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THE
PROVISIONS OF THIS SECTION 13.8 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH
OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS
CREDIT AGREEMENT AND ANY OTHER FUNDAMENTAL DOCUMENT. ANY PARTY MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 13.8
WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF ANY PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY
JURY.
46
Section 13.9
WAIVER WITH RESPECT TO DAMAGES.
EACH CREDIT
PARTY ACKNOWLEDGES THAT THE LENDER DOES NOT HAVE ANY FIDUCIARY RELATIONSHIP
WITH, OR FIDUCIARY DUTY TO, ANY CREDIT PARTY ARISING OUT OF OR IN CONNECTION
WITH THIS CREDIT AGREEMENT OR ANY OTHER FUNDAMENTAL DOCUMENT AND THE
RELATIONSHIP BETWEEN THE LENDER, ON THE ONE HAND, AND THE CREDIT PARTIES, ON THE
OTHER HAND, IN CONNECTION THEREWITH IS SOLELY THAT OF DEBTOR AND CREDITOR.
TO
THE EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO SHALL ASSERT, AND EACH
PARTY HERETO HEREBY WAIVES, ANY CLAIMS AGAINST ANY OTHER PARTY HERETO ON ANY
THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
(AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR
AS A RESULT OF, THIS CREDIT AGREEMENT, ANY FUNDAMENTAL DOCUMENT, ANY AGREEMENT
OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS
SECTION 13.9 SHALL SUPERSEDE ANY OF THE PROVISIONS OF THE HOLLYWOOD SPA.
Section 13.10
No Waiver.
No failure on the part of the
Lender to exercise, and no delay in exercising, any right, power or remedy
hereunder, under the Note or any other Fundamental Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law.
Section 13.11
Amendments; etc.
No modification, amendment
or waiver of any provision of this Credit Agreement, and no consent to any
departure by a Credit Party herefrom, shall in any event be effective unless the
same shall be in writing and signed by the Lender and acknowledged and agreed to
by the