otherwise affect
the rights of the Secured Party to exercise any remedy provided in this
Agreement or any other Security Document.
(c) The Secured Party shall have the discretion to allocate proceeds received by
the Secured Party pursuant to the exercise of remedies under the Note Documents
or at law or in equity (including without limitation with respect to any secured
creditor remedies exercised against the Collateral and any other collateral
security provided for under any Security Documents) to the then outstanding
Obligations in such order as the Secured Party shall elect.
5.2 No 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.
5.3 ENTIRE 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.
5.4 Grantor 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.
5.5 Intercreditor Agreement. Notwithstanding anything to the contrary herein, in
the event that Grantor consummates a Qualified Debt Financing, (i) the Liens
granted pursuant to Section 3 shall be subject to the terms and conditions of
any intercreditor agreement entered into by the Grantor and the Secured Party
with respect to such Qualified Debt Financing and on terms reasonably acceptable
to each of the Grantor and the Secured Party (an "Intercreditor Agreement"), and
(ii) the exercise of any right or remedy by the Secured Party hereunder is
subject in all instances to the provisions of the Intercreditor Agreement, if
any. In the event of any conflict between the terms of the Intercreditor
Agreement, if any, and this Agreement, the terms of the Intercreditor Agreement
shall govern and control.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have