DEMAND FOR POSSESSION PRIOR TO THE
COMMENCEMENT OF A SUIT OR ACTION AS DESCRIBED ABOVE, SHALL NOT APPLY TO ACTIONS
TAKEN BY SECURED PARTY UNDER CHAPTER 903(a) OF THE CONNECTICUT GENERAL STATUTES,
AS AMENDED (x) IF DEBTOR OR ANY OTHER MEMBER OF THE PURCHASER GROUP (AS DEFINED
IN THE MERGER AGREEMENT) SHALL HAVE GIVEN WRITTEN NOTICE OF A CLAIM FOR
INDEMNIFICATION BY SELLER PURSUANT TO SECTION 9.1(a)(i) OF THE AGREEMENT AND
PLAN OF MERGER DATED AS OF MAY 31, 2007 BY AND AMONG BORROWER, SECURED PARTY, Z5
TECHNOLOGIES LLC AND DEBTOR (THE "MERGER AGREEMENT") PRIOR TO THE COMMENCEMENT
OF SUCH ACTION BY SECURED PARTY, OR (y) WHILE THE PRINCIPAL OF OR ACCRUED
INTEREST ON ANY ONE OR MORE OF THE PROMISSORY NOTES OF BORROWER LISTED ON
SCHEDULE A HERETO REMAINS OUTSTANDING (NEITHER PAID IN FULL, NOR CONVERTED TO
EQUITY, NOR A COMBINATION THEREOF) UNLESS SECURED PARTY HAS OBTAINED THE WRITTEN
CONSENT OF THE HOLDER(S) OF SUCH OUTSTANDING NOTE(S).
23.
Additional Waivers.
24.1
Jury Trial and Certain Damages. DEBTOR AND SECURED PARTY
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING,
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF SECURED PARTY RELATING TO THE ADMINISTRATION OF ANY OF THE
OBLIGATIONS OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND
AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER
ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW, DEBTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
23.2
DEBTOR (A) CERTIFIES THAT NEITHER SECURED PARTY NOR ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF SECURED PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SECURED PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE ANY OR ALL OF THE FOREGOING WAIVERS OR OTHER WAIVERS CONTAINED IN THIS
AGREEMENT, (B) ACKNOWLEDGES AND STIPULATES THAT THE FOREGOING WAIVERS AND OTHER
WAIVERS CONTAINED IN THIS AGREEMENT ARE MADE KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY AND AFTER FULL CONSULTATION WITH COUNSEL, AND (C) ACKNOWLEDGES
THAT THE FOREGOING WAIVERS AND OTHER WAIVERS CONTAINED IN THIS AGREEMENT
CONSTITUTE A MATERIAL INDUCEMENT FOR SECURED PARTY TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH SECURED PARTY IS A PARTY AND MAKE THE
LOANS.
24.
Entire Agreement; Severability.
24.1
Entire Agreement. This Agreement is intended by the parties
as the final, complete and exclusive statement of the transactions evidenced by
this Agreement. All prior or contemporaneous promises, agreements and
understandings, whether oral or written, are deemed to be superceded by this
Agreement, and no party is relying on any promise, agreement or understanding
not