any other person for damages of any kind,
including direct or indirect, special, incidental or consequential damages,
losses or expenses (whether in tort, contract or otherwise) arising out of any
Loan Party's or any Administrative Agent's transmission of communications
through the Internet, except to the extent the liability of such person is found
in a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such person's gross negligence or willful misconduct.
SECTION 11.02.
Waivers; Amendment.
(A)
GENERALLY.
NO FAILURE OR DELAY BY ANY AGENT, THE ISSUING BANK OR
ANY LENDER IN EXERCISING ANY RIGHT OR POWER HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY SUCH RIGHT OR POWER, OR ANY ABANDONMENT OR DISCONTINUANCE OF
STEPS TO ENFORCE SUCH A RIGHT OR POWER, PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT OR POWER.
THE RIGHTS AND REMEDIES OF
EACH AGENT, THE ISSUING BANK AND THE LENDERS HEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS ARE CUMULATIVE AND ARE NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES THAT
THEY WOULD OTHERWISE HAVE.
NO WAIVER OF ANY PROVISION OF ANY LOAN DOCUMENT OR
CONSENT TO ANY DEPARTURE BY ANY LOAN PARTY THEREFROM SHALL IN ANY EVENT BE
EFFECTIVE UNLESS THE SAME SHALL BE PERMITTED BY THIS SECTION 11.02, AND THEN
SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR
THE PURPOSE FOR WHICH GIVEN.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
THE MAKING OF A LOAN OR ISSUANCE OF A LETTER OF CREDIT SHALL NOT BE CONSTRUED AS
A WAIVER OF ANY DEFAULT, REGARDLESS OF WHETHER ANY AGENT, ANY LENDER OR THE
ISSUING BANK MAY HAVE HAD NOTICE OR KNOWLEDGE OF SUCH DEFAULT AT THE TIME.
NO
NOTICE OR DEMAND ON THE BORROWERS IN ANY CASE SHALL ENTITLE THE BORROWERS TO ANY
OTHER OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES.
(B)
REQUIRED CONSENTS.
SUBJECT TO THE TERMS OF THE INTERCREDITOR
AGREEMENT AND TO SECTION 11.02(C) AND (D) NEITHER THIS AGREEMENT NOR ANY OTHER
LOAN DOCUMENT NOR ANY PROVISION HEREOF OR THEREOF MAY BE WAIVED, AMENDED,
SUPPLEMENTED OR MODIFIED EXCEPT, IN THE CASE OF THIS AGREEMENT, PURSUANT TO AN
AGREEMENT OR AGREEMENTS IN WRITING ENTERED INTO BY THE BORROWERS AND THE
REQUIRED LENDERS, PURSUANT TO A FINANCIAL COVENANT AMENDMENT NOTICE OR, IN THE
CASE OF ANY OTHER LOAN DOCUMENT, PURSUANT TO AN AGREEMENT OR AGREEMENTS IN
WRITING ENTERED INTO BY THE ADMINISTRATIVE AGENTS, THE COLLATERAL AGENTS (IN THE
CASE OF ANY SECURITY DOCUMENT) AND THE LOAN PARTY OR LOAN PARTIES THAT ARE PARTY
THERETO, IN EACH CASE WITH THE WRITTEN CONSENT OF THE REQUIRED LENDERS; PROVIDED
THAT NO SUCH AGREEMENT SHALL BE EFFECTIVE IF THE EFFECT THEREOF WOULD:
(I)
INCREASE THE COMMITMENT OF ANY LENDER WITHOUT THE WRITTEN
CONSENT OF SUCH LENDER (IT BEING UNDERSTOOD THAT NO AMENDMENT, MODIFICATION,
TERMINATION, WAIVER OR CONSENT WITH RESPECT TO ANY CONDITION PRECEDENT, COVENANT
OR DEFAULT SHALL CONSTITUTE