ANY OTHER JURISDICTION.
(d)
THE COLLATERAL AGENT, EACH GRANTOR AND EACH
SECURED PARTY HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY PRIORITY LIEN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; PROVIDED, THAT, FOR THE AVOIDANCE
OF DOUBT, NOTHING CONTAINED IN THIS CLAUSE (II) SHALL LIMIT ANY GRANTOR'S
INDEMNIFICATION OBLIGATIONS TO THE EXTENT SET FORTH IN SECTION 10.03(B) ABOVE TO
THE EXTENT SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARE
INCLUDED IN ANY THIRD PARTY CLAIM IN CONNECTION WITH WHICH SUCH INDEMNIFIED
PERSON IS OTHERWISE ENTITLED TO INDEMNIFICATION HEREUNDER; (III) CERTIFY THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND
(IV) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE
APPLICABLE PRIORITY LIEN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION 10.10.
28
Section 10.11
Acknowledgments.
(a)
Each Grantor hereby acknowledges that:
(i)
it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the Priority Lien
Documents to which it is a party;
(ii)
neither the Collateral Agent nor any other
Secured Party has any fiduciary relationship with or duty to any Grantor arising
out of or in connection with this Agreement or any of the Priority Lien
Documents, and the relationship between the Grantors, on the one hand, and the
Collateral Agent and the other Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor or agent, as
applicable; and
(iii)
no joint venture is created hereby or by the
Priority Lien Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Secured Parties or among the Grantors and the
Secured Parties.
(b)
Each of the parties hereto specifically
agrees that it has a duty to read this Agreement and the Security Documents and
agrees that it is charged with notice and knowledge of the terms of this
Agreement and the other Security Documents; that it has in fact read this
Agreement and is fully informed and has full notice and knowledge of the terms,
conditions and effects of this Agreement; that it has been represented by
independent legal counsel of its choice throughout the negotiations preceding
its execution of this Agreement and the other Security Documents; and has
received the advice of its attorney in entering into this Agreement and the
other Security Documents; and that it recognizes that certain of the terms of
this