by law.
8.15.5
EACH ISSUER HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR
ANY OTHER NOTE DOCUMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH ISSUER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
ISSUER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER ISSUER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER ISSUERS HAVE BEEN INDUCED TO ENTER INTO THIS
SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 8.15.5.
8.16
Notices. Any notice required or permitted to be given under this
Security Agreement shall be sent (and deemed received) in the manner and to the
addresses set forth in the Indenture.
SECOND LIEN PLEDGE AND SECURITY AGREEMENT
- Page 23
8.17
INDEMNITY. EACH ISSUER HEREBY AGREES TO INDEMNIFY THE COLLATERAL
AGENT AND ITS SUCCESSORS, ASSIGNS, AGENTS, ATTORNEYS, AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL LIABILITIES, DAMAGES, PENALTIES, SUITS, COSTS, AND EXPENSES
OF ANY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ALL EXPENSES OF
LITIGATION OR PREPARATION THEREFOR WHETHER OR NOT THE COLLATERAL AGENT IS A
PARTY THERETO) IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE COLLATERAL AGENT
OR ITS SUCCESSORS, ASSIGNS, AGENTS, ATTORNEYS, AND EMPLOYEES, IN ANY WAY
RELATING TO OR ARISING OUT OF THIS SECURITY AGREEMENT, OR THE MANUFACTURE,
PURCHASE, ACCEPTANCE, REJECTION, OWNERSHIP, DELIVERY, LEASE, POSSESSION, USE,
OPERATION, CONDITION, SALE, RETURN OR OTHER DISPOSITION OF ANY COLLATERAL
(INCLUDING, WITHOUT LIMITATION, LATENT AND OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE BY the Collateral Agent OR THE ISSUERS, AND ANY CLAIM FOR
INTELLECTUAL PROPERTY INFRINGEMENT).
8.18
Conflicts. To the extent that the provisions of this Security
Agreement conflict with the provisions of the Mortgages with respect to Personal
Property as defined in the Mortgages, the provisions of the Mortgages shall
control.
8.19 Delivery of Collateral, Etc. Prior to the Discharge of Priority Lien
Obligations (as defined in the Intercreditor Agreement), to the extent any
Issuer is required hereunder or in any other Note Document to deliver Collateral
to the Collateral Agent for purposes of possession and control and is unable to
do so as a result of having previously delivered such Collateral to the Priority
Lien Agent, such Grantor's obligations hereunder or in any other Note Document
(including the representations and warranties made by it hereunder and in the
other Loan Documents) with respect to such delivery shall be deemed satisfied by
the delivery to the Priority Lien Agent, acting as a gratuitous bailee of the
Collateral Agent. Notwithstanding anything to the contrary contained in this
Agreement or any other Note Document, to the extent the provisions of this
Agreement (or any other Note Documents) require the delivery of, or control
over, Collateral to be granted to the Collateral Agent at any time prior to the
Discharge of Priority