POWER OR PRIVILEGE UNDER THIS AGREEMENT SHALL OPERATE AS A
WAIVER OF ANY SUCH PRIVILEGE, POWER OR RIGHT.
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(B)
INDEMNITEE AND INDEMNITOR EACH AND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER IT HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT.
THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, AND VOLUNTARILY MADE BY INDEMNITEE AND INDEMNITOR, AND INDEMNITEE
AND INDEMNITOR ACKNOWLEDGE THAT NO PERSON ACTING ON BEHALF OF THE OTHER PARTY TO
THIS AGREEMENT HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
INDEMNITEE AND
INDEMNITOR FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE
WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.
ARTICLE 5
MISCELLANEOUS
5.1
NOTICES.
ALL NOTICES OR OTHER WRITTEN COMMUNICATIONS HEREUNDER
SHALL BE DELIVERED IN ACCORDANCE WITH SECTION 15.6 OF THE LOAN AGREEMENT (EXCEPT
THAT NOTICES TO GUARANTOR SHALL BE DELIVERED TO THE ADDRESS PROVIDED THEREIN FOR
BORROWER).
5.2
NO THIRD-PARTY BENEFICIARY.
THE TERMS OF THIS AGREEMENT ARE
FOR THE SOLE AND EXCLUSIVE PROTECTION AND BENEFIT OF INDEMNIFIED PARTIES.
NO
PARTY SHALL BE A THIRD-PARTY BENEFICIARY HEREUNDER, AND NO PROVISION HEREOF
SHALL OPERATE OR INURE TO THE USE AND BENEFIT OF ANY SUCH THIRD PARTY.
IT IS
AGREED THAT THOSE PERSONS INCLUDED IN THE DEFINITION OF INDEMNIFIED PARTIES ARE
NOT SUCH EXCLUDED THIRD-PARTY BENEFICIARIES.
5.3
DUPLICATE ORIGINALS; COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF DUPLICATE ORIGINALS AND EACH DUPLICATE ORIGINAL SHALL
BE DEEMED TO BE AN ORIGINAL.
THIS AGREEMENT MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, EACH OF WHICH COUNTERPARTS SHALL BE DEEMED AN ORIGINAL INSTRUMENT
AND ALL OF WHICH TOGETHER SHALL CONSTITUTE A SINGLE AGREEMENT.
THE FAILURE OF
ANY PARTY HERETO TO EXECUTE THIS AGREEMENT, OR ANY COUNTERPART HEREOF, SHALL NOT
RELIEVE THE OTHER SIGNATORIES FROM THEIR OBLIGATIONS HEREUNDER.
MANUALLY
EXECUTED COUNTERPARTS OF THIS AGREEMENT SHALL BE DELIVERED TO ALL PARTIES
HERETO; PROVIDED, THAT DELIVERY OF A SIGNATURE OF THIS AGREEMENT BY FACSIMILE
TRANSMISSION OR BY .PDF, .JPEG, .TIFF OR OTHER FORM OF ELECTRONIC MAIL
ATTACHMENT SHALL BE EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART
HEREOF PRIOR TO AND IN THE ABSENCE OF MANUAL DELIVERY.
5.4
NO ORAL CHANGE.
THIS AGREEMENT, AND ANY PROVISIONS HEREOF,
MAY NOT BE MODIFIED, AMENDED, WAIVED, EXTENDED, CHANGED, DISCHARGED OR
TERMINATED ORALLY OR BY ANY ACT OR FAILURE TO ACT ON THE PART OF INDEMNITOR OR
ANY INDEMNIFIED PARTY, BUT ONLY BY AN AGREEMENT IN
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writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
5.5
HEADINGS, ETC.
THE HEADINGS AND CAPTIONS OF VARIOUS
PARAGRAPHS OF THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE