OTHERWISE) ARISING OUT OF BORROWER'S
OR LENDER'S TRANSMISSION OF BORROWER MATERIALS THROUGH THE INTERNET, EXCEPT TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES ARE
DETERMINED BY A COURT OF COMPETENT JURISDICTION BY A FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH LENDER PARTY; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL ANY LENDER PARTY
HAVE ANY LIABILITY TO BORROWER, THE L/C ISSUER OR ANY OTHER PERSON FOR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR
ACTUAL DAMAGES).
(D)
CHANGE OF ADDRESS, ETC.
EACH OF BORROWER, THE LENDER AND THE L/C
ISSUER MAY CHANGE ITS ADDRESS, TELECOPIER OR TELEPHONE NUMBER FOR NOTICES AND
OTHER COMMUNICATIONS HEREUNDER BY NOTICE TO THE OTHER PARTIES HERETO.
(E)
RELIANCE BY THE LENDER AND L/C ISSUER.
THE LENDER AND THE L/C
ISSUER SHALL BE ENTITLED TO RELY AND ACT UPON ANY NOTICES (INCLUDING TELEPHONIC
COMMITTED LOAN NOTICES) PURPORTEDLY GIVEN BY OR ON BEHALF OF BORROWER EVEN IF
(I) SUCH NOTICES WERE NOT MADE IN A MANNER SPECIFIED HEREIN, WERE INCOMPLETE OR
WERE NOT PRECEDED OR FOLLOWED BY ANY OTHER FORM OF NOTICE SPECIFIED HEREIN, OR
(II) THE TERMS THEREOF, AS UNDERSTOOD BY THE RECIPIENT, VARIED FROM ANY
CONFIRMATION THEREOF.
BORROWER SHALL INDEMNIFY THE LENDER, THE L/C ISSUER AND
THE RELATED PARTIES OF EACH OF THEM FROM ALL LOSSES, COSTS, EXPENSES AND
LIABILITIES RESULTING FROM THE RELIANCE BY SUCH PERSON ON EACH NOTICE
PURPORTEDLY GIVEN BY OR ON BEHALF OF BORROWER.
ALL TELEPHONIC NOTICES TO AND
OTHER TELEPHONIC COMMUNICATIONS WITH THE LENDER MAY BE RECORDED BY THE LENDER,
AND EACH OF THE PARTIES HERETO HEREBY CONSENTS TO SUCH RECORDING.
56
9.03
NO WAIVER; CUMULATIVE REMEDIES.
NO FAILURE BY THE LENDER OR THE L/C
ISSUER TO EXERCISE, AND NO DELAY BY ANY SUCH PERSON IN EXERCISING, ANY RIGHT,
REMEDY, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF; NOR
SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, REMEDY, POWER OR PRIVILEGE
HEREUNDER PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY
OTHER RIGHT, REMEDY, POWER OR PRIVILEGE.
THE RIGHTS, REMEDIES, POWERS AND
PRIVILEGES HEREIN PROVIDED ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS,
REMEDIES, POWERS AND PRIVILEGES PROVIDED BY LAW.
9.04
EXPENSES; INDEMNITY; DAMAGE WAIVER.
(A)
COSTS AND EXPENSES.
BORROWER SHALL PAY (I) ALL REASONABLE OUT OF POCKET EXPENSES INCURRED BY THE
LENDER AND ITS AFFILIATES (INCLUDING THE REASONABLE FEES, CHARGES AND
DISBURSEMENTS OF COUNSEL FOR THE LENDER), IN CONNECTION WITH THE PREPARATION,
NEGOTIATION, EXECUTION, DELIVERY AND ADMINISTRATION OF THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS OR ANY AMENDMENTS, MODIFICATIONS OR WAIVERS OF THE
PROVISIONS HEREOF OR THEREOF (WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY SHALL BE CONSUMMATED), (II) ALL REASONABLE OUT OF POCKET
EXPENSES INCURRED BY THE L/C ISSUER IN CONNECTION WITH THE ISSUANCE, AMENDMENT,
RENEWAL OR EXTENSION OF ANY LETTER OF CREDIT OR ANY DEMAND FOR PAYMENT
THEREUNDER AND (III) ALL OUT OF POCKET EXPENSES INCURRED BY THE LENDER OR THE
L/C ISSUER (INCLUDING