successor Secured Party of the security
interests created hereunder, whereupon such retiring or removed Secured Party
shall be discharged from its duties and obligations under this Agreement. After
any retiring or removed Secured Party's resignation or removal hereunder as
Secured Party, the provisions of this
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Agreement shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Agreement while it was Secured Party hereunder.
(e)Neither the Collateral Agent nor its Representatives nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be liable to any party for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Security Document or Notes Document (except for its or such other Person's own
gross negligence or willful misconduct, as determined in a final non-appealable
judgment of a court of competent jurisdiction).
5.12No Strict Construction. The language used in this Agreement will be deemed
to be the language chosen by the parties to express their mutual intent, and no
rules of strict construction will be applied against any party.
5.13ENTIRE AGREEMENT; AMENDMENT. THIS AGREEMENT, TOGETHER WITH THE OTHER NOTE
DOCUMENTS, SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN THE
SECURED PARTY, THE GRANTOR, THEIR AFFILIATES AND PERSONS ACTING ON THEIR BEHALF
WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT, TOGETHER WITH
THE OTHER NOTE DOCUMENTS AND THE OTHER INSTRUMENTS REFERENCED HEREIN AND
THEREIN, CONTAINS THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE
MATTERS COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN
OR THEREIN, NEITHER THE SECURED PARTY NOR THE GRANTOR MAKES ANY REPRESENTATION,
WARRANTY, COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS. AS OF THE DATE
OF THIS AGREEMENT, THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES WITH
RESPECT TO THE MATTERS DISCUSSED HEREIN. NO PROVISION OF THIS AGREEMENT MAY BE
AMENDED, MODIFIED OR SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED
BY THE GRANTOR AND THE SECURED PARTY.
5.14Grantor Acknowledgement. The Grantor acknowledges receipt of an executed
copy of this Agreement. The Grantor waives the right to receive any amount that
it may now or hereafter be entitled to receive (whether by way of damages, fine,
penalty, or otherwise) by reason of the failure of the Secured Party to deliver
to the Grantor a copy of any financing statement or any statement issued by any
registry that confirms registration of a financing statement relating to this
Agreement.
5.15Intercreditor Agreement. Notwithstanding anything to the contrary herein, in
the event that Grantor consummates a Traditional Working Capital Facility, (i)
the Liens granted pursuant to Section 3 shall be of equal priority with the
liens securing any such Traditional Working Capital Facility subject to the
terms and conditions of any intercreditor agreement entered into by the Grantor
and the Secured Party with respect to such Traditional Working Capital Facility
and on terms reasonably acceptable to each of the Grantor and the Secured Party