process in any
other manner permitted by law.
8.16.5
EACH DEBTOR 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 DEBTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
DEBTOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER DEBTOR WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER DEBTORS HAVE BEEN INDUCED TO ENTER INTO THIS
SECURITY AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 8.16.5.
SECOND LIEN PLEDGE AND SECURITY AGREEMENT
- Page 24
8.17
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.
8.18
INDEMNITY. EACH DEBTOR HEREBY AGREES TO INDEMNIFY 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 COLLATERAL AGENT IS A PARTY THERETO) IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST 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 SUCH
DEBTOR, AND ANY CLAIM FOR INTELLECTUAL PROPERTY INFRINGEMENT).
8.19
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.
8.20
Delivery of Collateral, Etc. Prior to the Discharge of Priority
Lien Obligations (as defined in the Intercreditor Agreement), to the extent any
Debtor 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 Note 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