MISCONDUCT.
THE BORROWERS ALSO
AGREE NOT TO ASSERT ANY CLAIM AGAINST ANY AGENT, ANY LENDER OR ANY OF THEIR
AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
AND ADVISORS, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL
OR PUNITIVE DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, THE
ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE TERM LOAN ADVANCES, THE
TRANSACTION DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS.
(C)
NO INDEMNIFIED PARTY SHALL HAVE ANY
LIABILITY (WHETHER DIRECT OR INDIRECT, IN CONTRACT, TORT OR OTHERWISE) TO ANY
BORROWER OR ITS SUBSIDIARIES, OR ANY SHAREHOLDERS OR CREDITORS OF THE FOREGOING
FOR OR IN CONNECTION WITH TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT TO THE EXTENT
SUCH LIABILITY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
IN NO EVENT, HOWEVER, SHALL ANY INDEMNIFIED
PARTY BE LIABLE ON ANY THEORY OF LIABILITY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY LOSS OF PROFITS, BUSINESS OR
ANTICIPATED SAVINGS).
(D)
IF ANY PAYMENT OF PRINCIPAL OF, OR
CONVERSION OF, ANY EURODOLLAR RATE ADVANCE IS MADE BY THE BORROWERS TO OR FOR
THE ACCOUNT OF A LENDER OTHER THAN ON THE LAST DAY OF THE INTEREST PERIOD FOR
SUCH TERM LOAN ADVANCE, AS A RESULT OF A PAYMENT OR CONVERSION PURSUANT TO
SECTION 2.05, 2.08(B)(I) OR 2.09(D), ACCELERATION OF THE MATURITY OF THE NOTES
PURSUANT TO SECTION 6.01 OR FOR ANY OTHER REASON, OR IF THE BORROWERS FAIL TO
MAKE ANY PAYMENT OR PREPAYMENT OF AN TERM LOAN ADVANCE FOR WHICH A NOTICE OF
PREPAYMENT HAS BEEN GIVEN OR THAT
96
IS OTHERWISE REQUIRED TO BE MADE, WHETHER PURSUANT TO SECTION 2.03, 2.05 OR 6.01
OR OTHERWISE, THE BORROWERS, JOINTLY AND SEVERALLY, AGREE TO, UPON DEMAND BY
SUCH LENDER (WITH A COPY OF SUCH DEMAND TO THE ADMINISTRATIVE AGENT), PAY TO THE
ADMINISTRATIVE AGENT FOR THE ACCOUNT OF SUCH LENDER ANY AMOUNTS REQUIRED TO
COMPENSATE SUCH LENDER FOR ANY ADDITIONAL LOSSES, COSTS OR EXPENSES THAT IT MAY
REASONABLY INCUR AS A RESULT OF SUCH PAYMENT OR CONVERSION OR SUCH FAILURE TO
PAY OR PREPAY, AS THE CASE MAY BE, INCLUDING ANY LOSS (INCLUDING LOSS OF
ANTICIPATED PROFITS), COST OR EXPENSE INCURRED BY REASON OF THE LIQUIDATION OR
REEMPLOYMENT OF DEPOSITS OR OTHER FUNDS ACQUIRED BY ANY LENDER TO FUND OR
MAINTAIN SUCH TERM LOAN ADVANCE.
(E)
IF ANY LOAN PARTY FAILS TO PAY WHEN DUE ANY
COSTS, EXPENSES OR OTHER AMOUNTS PAYABLE BY IT UNDER ANY LOAN DOCUMENT,
INCLUDING FEES AND EXPENSES OF COUNSEL AND INDEMNITIES, SUCH AMOUNT MAY BE PAID
ON BEHALF OF SUCH LOAN PARTY BY THE ADMINISTRATIVE AGENT OR ANY LENDER, IN ITS
SOLE DISCRETION, EXERCISED REASONABLY.
(F)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF ANY LOAN PARTY HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT,
THE AGREEMENTS AND OBLIGATIONS OF THE BORROWERS CONTAINED IN SECTIONS 2.09 AND
2.11 AND THIS SECTION 8.04 SHALL