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
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 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, WITHOUT
LIMITATION, ANY LOSS (INCLUDING LOSS