ANY OF THEIR SUBSIDIARIES OR THEIR RESPECTIVE PREDECESSORS, OR (B) ANY ACTUAL
OR ALLEGED PRESENCE, RELEASE OR THREATENED RELEASE OF HAZARDOUS MATERIALS AT,
UNDER, ON, FROM OR TO ANY PROPERTY CURRENTLY OR FORMERLY OWNED, OPERATED OR
LEASED BY THE BORROWERS OR ANY OF THEIR SUBSIDIARIES OR THEIR RESPECTIVE
PREDECESSORS, OR ANY OTHER LOCATION WHERE WASTES GENERATED BY THE BORROWERS OR
ANY OF THEIR SUBSIDIARIES OR THEIR RESPECTIVE PREDECESSORS WERE DISPOSED;
PROVIDED, THAT SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO
THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES
ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE
JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SUCH INDEMNITEE OR ANY OF ITS RELATED PARTIES.
NONE OF THE INDEMNITEES (OR ANY
OF THEIR RESPECTIVE AFFILIATES) SHALL BE RESPONSIBLE OR LIABLE TO THE FUND,
HOLDINGS, THE BORROWERS OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES OR
STOCKHOLDERS OR ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES, WHICH MAY BE ALLEGED AS A RESULT OF THE
FACILITIES OR THE TRANSACTIONS.
THE PROVISIONS OF THIS SECTION 9.05 SHALL
REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT REGARDLESS OF THE EXPIRATION OF
THE TERM OF THIS AGREEMENT, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY, THE REPAYMENT OF ANY OF THE OBLIGATIONS, THE INVALIDITY OR
UNENFORCEABILITY OF ANY TERM OR PROVISION OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY INVESTIGATION MADE BY OR ON
141
BEHALF OF THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER.
ALL AMOUNTS
DUE UNDER THIS SECTION 9.05 SHALL BE PAYABLE ON WRITTEN DEMAND THEREFOR
ACCOMPANIED BY REASONABLE DOCUMENTATION WITH RESPECT TO ANY REIMBURSEMENT,
INDEMNIFICATION OR OTHER AMOUNT REQUESTED.
(C)
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.05(A) WITH RESPECT TO
OTHER TAXES, WHICH SHALL NOT BE DUPLICATIVE WITH ANY AMOUNTS PAID PURSUANT TO
SECTION 2.17, THIS SECTION 9.05 SHALL NOT APPLY TO TAXES.
(D)
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HOLDINGS AND
THE BORROWERS SHALL NOT ASSERT, AND HEREBY WAIVE, ANY CLAIM AGAINST ANY
INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR
ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS
THEREOF.
NO INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT
THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS
IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(E)
THE AGREEMENTS IN THIS SECTION 9.05 SHALL SURVIVE THE RESIGNATION
OF THE ADMINISTRATIVE AGENT, ANY ISSUING BANK, THE REPLACEMENT OF ANY LENDER,
THE TERMINATION OF THE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR DISCHARGE
OF ALL THE OTHER OBLIGATIONS AND THE TERMINATION OF THIS