OF THIS AGREEMENT.
(III)
POWER OF ATTORNEY. THE BORROWER HEREBY
APPOINTS THE NON-BA LENDER AS ITS TRUE AND LAWFUL ATTORNEY TO COMPLETE BA
EQUIVALENT NOTES ON BEHALF OF THE BORROWER IN ACCORDANCE WITH WRITTEN (INCLUDING
FACSIMILE) TRANSMITTED INSTRUCTIONS DELIVERED BY THE BORROWER TO THE
ADMINISTRATIVE AGENT, AND THE BORROWER HEREBY RATIFIES ALL THAT ITS SAID
ATTORNEY MAY DO BY VIRTUE THEREOF.
THE BORROWER AGREES TO INDEMNIFY AND HOLD
HARMLESS THE ADMINISTRATIVE AGENT AND THE NON-BA LENDER AND THEIR RESPECTIVE
DIRECTORS, OFFICERS AND EMPLOYEES FROM AND AGAINST ANY CHARGES, COMPLAINTS,
COSTS, DAMAGES, EXPENSES, LOSSES OR LIABILITIES OF ANY KIND OR NATURE WHICH THEY
MAY INCUR, SUSTAIN OR SUFFER, ARISING FROM OR BY REASON OF ACTING, OR FAILING TO
ACT, AS THE CASE MAY BE, IN RELIANCE UPON THIS POWER OF ATTORNEY EXCEPT TO THE
EXTENT CAUSED BY THE NEGLIGENCE OR WILFUL MISCONDUCT OF THE ADMINISTRATIVE AGENT
OR THE NON-BA LENDER OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES. THE
BORROWER HEREBY AGREES THAT EACH BA EQUIVALENT NOTE COMPLETED BY THE NON-BA
LENDER ON BEHALF OF THE BORROWER IS A VALID, BINDING AND NEGOTIABLE INSTRUMENT
OF THE BORROWER AS DRAWER AND ENDORSER.
THE BORROWER AGREES THAT THE NON-BA
LENDER'S ACCOUNTS AND RECORDS WILL CONSTITUTE PRIMA FACIE EVIDENCE OF THE
EXECUTION AND DELIVERY BY THE BORROWER OF
31
BA EQUIVALENT NOTES.
THIS POWER OF ATTORNEY SHALL CONTINUE IN FORCE UNTIL
WRITTEN NOTICE OF REVOCATION HAS BEEN SERVED UPON THE AGENT ON BEHALF OF THE
NON-BA LENDER BY THE BORROWER AT THE ADMINISTRATIVE AGENT'S ADDRESS PROVIDED IN
SECTION 9.01.
(I)
LIABILITY OF BORROWER. THE BORROWER
SHALL BE INDEBTED UPON THE MATURITY THEREOF TO EACH LENDER IN AN AMOUNT
EQUIVALENT TO THE FULL UNDISCOUNTED FACE AMOUNT OF EACH BA AND BA EQUIVALENT
NOTE ACCEPTED AND PURCHASED BY OR ISSUED TO SUCH LENDER AND THE BORROWER'S
OBLIGATIONS IN THAT REGARD SHALL BE UNCONDITIONAL AND IRREVOCABLE AND SHALL BE
PAID STRICTLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT UNDER ALL
CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING:
(I)
ANY LACK OF VALIDITY OR ENFORCEABILITY
OF ANY BA OR BA EQUIVALENT NOTE ACCEPTED BY A LENDER; OR
(II)
THE EXISTENCE OF ANY CLAIM, SET-OFF,
DEFENCE OR OTHER RIGHT WHICH THE BORROWER MAY HAVE AT ANY TIME AGAINST THE
HOLDER OF A BA OR BA EQUIVALENT NOTE, THE ADMINISTRATIVE AGENT, SUCH LENDER OR
ANY OTHER PERSON, WHETHER IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE.
(J)
PRESIGNED DRAFTS. TO FACILITATE THE
ACCEPTANCE BY THE BA LENDERS OF BANKERS' ACCEPTANCES AS CONTEMPLATED BY THIS
AGREEMENT, THE BORROWER SHALL AT THE REQUEST OF THE ADMINISTRATIVE AGENT (ON
BEHALF OF ANY BA LENDER) SUPPLY THE ADMINISTRATIVE AGENT FOR SUCH BA LENDERS
WITH SUCH NUMBER OF BAS AS THE ADMINISTRATIVE AGENT ON BEHALF OF THE BA LENDERS
MAY FROM TIME TO TIME REQUEST, EACH EXECUTED BY OR ON BEHALF OF THE BORROWER.
THE ADMINISTRATIVE AGENT AND EACH BA LENDER, TO THE EXTENT EITHER RETAIN
POSSESSION THEREOF, SHALL EXERCISE SUCH CARE IN THE CUSTODY AND SAFEKEEPING OF
SUCH BAS AS IT GIVES TO SIMILAR PROPERTY