OR ANY OTHER THEORY (INCLUDING ANY INVESTIGATION
OF, PREPARATION FOR, OR DEFENSE OF ANY PENDING OR THREATENED CLAIM,
INVESTIGATION, LITIGATION OR PROCEEDING) AND REGARDLESS OF WHETHER ANY
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 9.04(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 TO THE
BORROWER OR ANY OF ITS SUBSIDIARIES 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 TO THE BORROWER OR ANY OF ITS SUBSIDIARIES FOR ANY DAMAGES ARISING FROM
THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH AN
INFORMATIONAL WEBSITE OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT.
ALL AMOUNTS DUE UNDER THIS
SECTION 9.04(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 OTHER
THAN ON THE LAST DAY OF THE INTEREST PERIOD FOR SUCH ADVANCE, AS A RESULT OF A
PAYMENT OR CONVERSION PURSUANT TO SECTION 2.05, 2.08(B)(I) OR 2.09(D),
ACCELERATION OF THE MATURITY OF THE ADVANCES 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 2.03, 2.05 OR 6.01 OR
OTHERWISE, THE BORROWER SHALL, UPON DEMAND