owed to it (including Intermediary's fee) shall have been
paid or until adequate provision has been made therefor, in the sole discretion
of Intermediary and/or Accruit.
Nor shall Intermediary or Accruit be
responsible for any consequences or liability for the failure to act as a result
of Exchanger's failure to pay or make adequate provisions to pay.
9.07LIABILITY LIMITATION.
EXCHANGER AGREES THAT INTERMEDIARY AND ACCRUIT SHALL
NOT BE LIABLE FOR PUNITIVE, EXEMPLARY, CONTRACT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, OR FOR ANY LOST PROFITS INCURRED BY EXCHANGER OR FOR ANY INCOME TAXES,
INTEREST OR PENALTIES INCURRED BY EXCHANGER, WHETHER THE BASIS OF THE LIABILITY
IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY),
STATUTES OR ANY OTHER LEGAL THEORY (AND EVEN IF INTERMEDIARY AND/OR ACCRUIT HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
IN NO EVENT SHALL THE
AGGREGATE DAMAGES FOR WHICH INTERMEDIARY AND/OR ACCRUIT SHALL BE HELD LIABLE
UNDER THIS AGREEMENT, WHICH DAMAGES SHALL ONLY APPLY IN THE CASE OF GROSS
NEGLIGENCE OR WILLFUL AND WANTON MISCONDUCT ON THE PART OF INTERMEDIARY OR
ACCRUIT, EXCEED ONE TIMES
Page 10 of 15
ANNUAL FEES PAID FOR LKE TAX SERVICES AND QI SERVICES.
EXCHANGER AGREES TO
PROMPTLY NOTIFY INTERMEDIARY AND ACCRUIT OF ANY COMPLAINT OR CLAIM EXCHANGER
INTENDS TO ASSERT AGAINST INTERMEDIARY AND/OR ACCRUIT, AND EXCHANGER AGREES TO
NOT ASSERT ANY CLAIM AGAINST INTERMEDIARY OR ACCRUIT AFTER THE PASSAGE OF 180
DAYS AFTER THE COMPLETION OF THE EXCHANGE INVOLVED.
EXCHANGER AGREES THAT THE
FOREGOING LIMITATION ON THE TYPE AND AMOUNT OF DAMAGES RECOVERABLE FROM
INTERMEDIARY AND ACCRUIT, AND THE LIMITATION OF THE TIME WITHIN WHICH ANY CLAIM
OR DISPUTE MAY BE ASSERTED AGAINST INTERMEDIARY AND ACCRUIT, IS FAIR AND
REASONABLE IN LIGHT OF THE SCOPE OF THE RESPONSIBILITY OF INTERMEDIARY AND
ACCRUIT UNDER THIS AGREEMENT AND THE LIMITED AMOUNT OF THE FEES EARNED BY
INTERMEDIARY AND ACCRUIT.
EXCHANGER ACKNOWLEDGES THAT INTERMEDIARY AND ACCRUIT
CONSIDER THIS PROVISION TO BE MATERIAL AND WOULD NOT HAVE BEEN WILLING TO ENTER
INTO THIS AGREEMENT IN THE ABSENCE OF SUCH LIMITATIONS.
EXCHANGER ACKNOWLEDGES
THAT THE LIMITATIONS CONTAINED HEREIN HAVE BEEN NEGOTIATED, AT ARMS LENGTH,
BETWEEN INTERMEDIARY, ACCRUIT, AND EXCHANGER.
Article 10
Intermediary's Fee
So long as the Wrapper Agreement remains in full force and effect, (a)
the fees
owed by Exchanger in respect of the services provided under this Agreement shall
be as set forth in the Wrapper Agreement, (b) Exchanger agrees to pay such fees,
and (c) such fees shall be billed by PwC as billing agent for Intermediary and
shall be paid by Exchanger to PwC.
Provided that full payment is made as
provided in the Wrapper Agreement, any such payment made to PwC shall be treated
as having been made to Intermediary for purposes of this Agreement, and
Intermediary shall look exclusively to PwC for payment of amounts that may be
due to Intermediary in connection with the services provided pursuant to this
Agreement.
Upon expiration or termination of the Wrapper Agreement prior to
expiration or termination of this Agreement, PwC and