BY TELEPHONE CONFIRMATION WITH AN AUTHORIZED OFFICER OF SUCH BORROWER,
SHALL CONCLUSIVELY BE DEEMED TO HAVE BEEN DISPATCHED OR SIGNED BY OR ON BEHALF
OF SUCH BORROWER PURSUANT TO SUCH PERSON'S AUTHORITY TO BIND SUCH BORROWER AND
ALL OTHER PERSONS FOR THE LIABILITIES AND MATTERS IN CONNECTION THEREWITH TO THE
AGENT AND EACH BANK; AND THE AGENT AND EACH BANK MAY CONCLUSIVELY RELY THEREON
AND SHALL HAVE NO OBLIGATION, DUTY OR RESPONSIBILITY TO DETERMINE THE VALIDITY
OR GENUINENESS THEREOF OR THE AUTHORITY OF THE PERSON OR PERSONS EXECUTING OR
DISPATCHING THE SAME.
SECTION 10.2
NO WAIVERS.
NO FAILURE OR DELAY BY THE AGENT OR ANY BANK IN
EXERCISING ANY RIGHT UNDER ANY LOAN DOCUMENT, AND NO COURSE OF DEALING WITH
RESPECT TO ANY SUCH RIGHTS, SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE THEREOF OR ANY ABANDONMENT OR DISCONTINUANCE OF STEPS
OR ACTIONS TO ENFORCE ANY RIGHTS, PRECLUDE OR PREJUDICE THE CONCURRENT OR
SUBSEQUENT EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER SUCH RIGHTS.
THE
RIGHTS PROVIDED IN THE LOAN DOCUMENTS SHALL BE CUMULATIVE AND NOT EXCLUSIVE OF
ANY RIGHTS OR REMEDIES PROVIDED BY LAW OR IN EQUITY.
SECTION 10.3
PAYMENT OF COSTS AND EXPENSES; PROFESSIONALS AND CONSULTANTS.
(A)
EACH BORROWER AGREES TO PAY ALL REASONABLE COSTS AND EXPENSES
INCURRED (WHETHER BEFORE, AFTER OR DURING THE CLOSING DATE) BY OR ON BEHALF OF
THE AGENT AND EACH BANK (INCLUDING AUDIT COSTS AND EXPENSES AND ALL ATTORNEYS'
AND OTHER PROFESSIONALS' AND CONSULTANTS' FEES, COSTS AND EXPENSES OF THE AGENT
AND OF EACH BANK INCURRED IN CONNECTION WITH THE PREPARATION OF, ADVICE OR
COUNSEL REGARDING, OR ENFORCEMENT OF, ANY LOAN DOCUMENT) IN CONNECTION WITH (I)
THE INVESTIGATION, REVIEW, NEGOTIATION, PREPARATION, EXECUTION, DELIVERY,
ADMINISTRATION, SYNDICATION, PARTICIPATION, FILING, RECORDATION, REFINANCING,
RESTRUCTURING, RENEGOTIATION OR ENFORCEMENT OF EACH OF THE LOAN DOCUMENTS, AND
ANY AND ALL RENEWALS, AMENDMENTS, EXTENSIONS, RESTATEMENTS, SUPPLEMENTS,
REARRANGEMENTS, CONSENTS, WAIVERS, ASSIGNMENTS AND MODIFICATIONS THERETO OR
THEREOF, AND THE TRANSACTIONS CONTEMPLATED THEREBY; (II) THE MONITORING,
EVALUATING, MAKING, MAINTAINING, SERVICING, ENFORCEMENT AND COLLECTION OF THE
REVOLVING LOANS AND THE TERM LOANS; (III) THE CREATION, PRESERVATION,
MAINTENANCE, PROTECTION, PERFECTION AND ENFORCEMENT OF RIGHTS UNDER EACH LOAN
DOCUMENT AND LIENS IN PROPERTY (WHETHER OR NOT INCURRED IN CONNECTION WITH
46
the commencement of a proceeding, litigation, foreclosure or other proceeding),
specifically including all costs and expenses incurred with respect to any
bankruptcy, insolvency or reorganization proceeding, regardless of whether the
Agent or a Bank ultimately prevails in such bankruptcy, insolvency or
reorganization proceeding; and (iv) all amounts expended, advanced or incurred
by or on behalf of the Agent or any Bank to satisfy any obligation of any
Borrower under any Loan Document which is not timely satisfied by such Borrower,
if the Agent or any Bank, at its discretion, so chooses to incur any such
expenses or costs.
(B)
SHOULD ANY BORROWER FAIL TO PERFORM OR OBSERVE ANY COVENANT OR
AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS AND SUCH FAILURE CONTINUES
THROUGH THE CURE PERIOD PROVIDED FOR THEREIN, IF