7, THE
INITIAL PURCHASERS WILL PAY ALL OF THEIR COSTS AND EXPENSES, INCLUDING FEES AND
DISBURSEMENTS OF THEIR COUNSEL, TRANSFER TAXES PAYABLE ON RESALE OF ANY OF THE
SECURITIES BY THEM AND ANY ADVERTISING EXPENSES CONNECTED WITH ANY OFFERS THEY
MAY MAKE.
(B)
IF (I) THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION 8, (II)
THE COMPANY FOR ANY REASON FAILS TO TENDER THE SECURITIES FOR DELIVERY TO THE
INITIAL PURCHASERS OR (III) THE INITIAL PURCHASERS DECLINE TO PURCHASE THE
SECURITIES FOR ANY REASON PERMITTED UNDER THIS AGREEMENT, THE COMPANY AND EACH
OF THE GUARANTORS JOINTLY AND SEVERALLY AGREES TO REIMBURSE THE INITIAL
PURCHASERS FOR ALL OUT-OF-POCKET COSTS AND EXPENSES (INCLUDING THE FEES AND
EXPENSES OF THEIR COUNSEL) REASONABLY INCURRED BY THE INITIAL PURCHASERS IN
CONNECTION WITH THIS AGREEMENT AND THE OFFERING CONTEMPLATED HEREBY.
11.
PERSONS ENTITLED TO BENEFIT OF AGREEMENT. THIS AGREEMENT SHALL
INURE TO THE BENEFIT OF AND BE BINDING UPON THE PARTIES HERETO AND THEIR
RESPECTIVE SUCCESSORS AND ANY CONTROLLING PERSONS REFERRED TO HEREIN, AND THE
AFFILIATES, OFFICERS AND DIRECTORS OF EACH INITIAL PURCHASER REFERRED TO IN
SECTION 7 HEREOF. NOTHING IN THIS AGREEMENT IS INTENDED OR SHALL BE CONSTRUED TO
GIVE ANY OTHER PERSON ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR IN
RESPECT OF THIS AGREEMENT OR ANY PROVISION CONTAINED HEREIN. NO PURCHASER OF
SECURITIES FROM ANY INITIAL PURCHASER SHALL BE DEEMED TO BE A SUCCESSOR MERELY
BY REASON OF SUCH PURCHASE.
12.
SURVIVAL. THE RESPECTIVE INDEMNITIES, RIGHTS OF CONTRIBUTION,
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY, THE GUARANTORS AND
THE INITIAL PURCHASERS CONTAINED IN THIS AGREEMENT OR MADE BY OR ON BEHALF OF
THE COMPANY, THE GUARANTORS OR THE INITIAL PURCHASERS PURSUANT TO THIS AGREEMENT
OR ANY CERTIFICATE DELIVERED PURSUANT HERETO SHALL SURVIVE THE DELIVERY OF AND
PAYMENT FOR THE SECURITIES AND SHALL REMAIN IN FULL
25
FORCE AND EFFECT, REGARDLESS OF ANY TERMINATION OF THIS AGREEMENT OR ANY
INVESTIGATION MADE BY OR ON BEHALF OF THE COMPANY, THE GUARANTORS OR THE INITIAL
PURCHASERS.
13.
CERTAIN DEFINED TERMS. FOR PURPOSES OF THIS AGREEMENT, (A) EXCEPT
WHERE OTHERWISE EXPRESSLY PROVIDED, THE TERM "AFFILIATE" HAS THE MEANING SET
FORTH IN RULE 405 UNDER THE SECURITIES ACT; (B) THE TERM "BUSINESS DAY" MEANS
ANY DAY OTHER THAN A DAY ON WHICH BANKS ARE PERMITTED OR REQUIRED TO BE CLOSED
IN NEW YORK CITY; (C) THE TERM "EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED; (D) THE TERM "SUBSIDIARY" HAS THE MEANING SET FORTH IN RULE
405 UNDER THE SECURITIES ACT; AND (E) THE TERM "WRITTEN COMMUNICATION" HAS THE
MEANING SET FORTH IN RULE 405 UNDER THE SECURITIES ACT.
14.
MISCELLANEOUS. (A) AUTHORITY OF THE REPRESENTATIVE. ANY ACTION BY
THE INITIAL PURCHASERS HEREUNDER MAY BE TAKEN BY J.P. MORGAN SECURITIES INC. ON
BEHALF OF THE INITIAL PURCHASERS, AND ANY SUCH ACTION TAKEN BY J.P. MORGAN
SECURITIES INC. SHALL BE BINDING UPON THE INITIAL PURCHASERS.
(B)
NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE
IN WRITING AND SHALL BE DEEMED TO HAVE BEEN