INDEMNITEE IS A PARTY THERETO (ALL THE
FOREGOING, COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), IN ALL CASES, WHETHER
OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE NEGLIGENCE OF THE
INDEMNITEE; PROVIDED THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE
AVAILABLE TO THE EXTENT THAT SUCH CLAIM, DAMAGE, LOSS, LIABILITY OR EXPENSE IS
DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED PRIMARILY FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNITEE.
IN THE CASE OF AN INVESTIGATION, LITIGATION OR
OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS SECTION 10.04(B) APPLIES, SUCH
INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH INVESTIGATION, LITIGATION OR
PROCEEDING IS BROUGHT BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, ANY SECURITY
HOLDERS OR CREDITORS OF THE FOREGOING AN INDEMNITEE OR ANY OTHER PERSON, OR AN
INDEMNITEE IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE CONSUMMATED.
NO INDEMNITEE SHALL HAVE ANY LIABILITY
(WHETHER DIRECT OR INDIRECT, IN CONTRACT, TORT OR OTHERWISE) TO THE BORROWER OR
ANY OF ITS SUBSIDIARIES FOR OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY, EXCEPT TO THE EXTENT SUCH LIABILITY IS DETERMINED IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH INDEMNITEE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN NO EVENT,
HOWEVER, SHALL ANY INDEMNITEE BE LIABLE ON ANY THEORY OF LIABILITY FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT
LIMITATION, ANY LOSS OF PROFITS, BUSINESS OR ANTICIPATED SAVINGS).
NO
INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
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OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR
OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT.
ALL AMOUNTS DUE UNDER THIS SECTION 10.04(B) SHALL BE PAYABLE WITHIN
TEN BUSINESS DAYS AFTER DEMAND THEREFOR.
THE AGREEMENTS IN THIS SECTION SHALL
SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, THE REPLACEMENT OF ANY
LENDER, THE TERMINATION OF THE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR
DISCHARGE OF ALL THE OTHER OBLIGATIONS.
(C)
IF ANY PAYMENT OF PRINCIPAL OF, OR CONVERSION OF, ANY EURODOLLAR
RATE ADVANCE IS MADE BY THE BORROWER TO OR FOR THE ACCOUNT OF A LENDER PARTY
OTHER THAN ON THE LAST DAY OF THE INTEREST PERIOD FOR SUCH ADVANCE, AS A RESULT
OF A PAYMENT OR CONVERSION PURSUANT TO SECTION 2.06, 2.09(B)(I) OR 2.10(D),
ACCELERATION OF THE MATURITY OF THE NOTES PURSUANT TO SECTION 6.01 OR FOR ANY
OTHER REASON, OR IF THE BORROWER FAILS TO MAKE ANY PAYMENT OR PREPAYMENT OF AN
ADVANCE FOR WHICH A NOTICE OF PREPAYMENT HAS BEEN GIVEN OR THAT IS OTHERWISE
REQUIRED TO BE MADE, WHETHER PURSUANT TO SECTION 2.04, 2.06 OR 6.01 OR
OTHERWISE, THE BORROWER SHALL, UPON DEMAND BY SUCH LENDER PARTY (WITH A COPY OF
SUCH DEMAND TO THE ADMINISTRATIVE AGENT), PAY TO THE ADMINISTRATIVE AGENT FOR
THE ACCOUNT OF SUCH LENDER PARTY ANY AMOUNTS REQUIRED TO COMPENSATE SUCH LENDER
PARTY FOR ANY ADDITIONAL LOSSES, COSTS OR EXPENSES THAT