the Initial Purchaser.
6.
Termination.
The obligations of the Initial Purchaser hereunder may be terminated at the sole
discretion of the Initial Purchaser by notice given to and received by the
Co-Issuers prior to delivery of and payment for the Securities if, prior to that
time, any of the events
38
described in Sections 5(g) and 5(h) shall have occurred and be continuing, any
of the certifications in Sections 5(s)(iii), (t)(iv), and (u)(iii) cease to be
true and correct, or if the Initial Purchaser shall decline to purchase the
Securities for any reason permitted under this Agreement, including, but not
limited to, the failure, refusal or inability by any of the Co-Issuers or the
Parent Companies to satisfy all conditions on its part to be performed or
satisfied hereunder on or prior to the Closing Date.
7.
Indemnification
(A)
EACH OF THE CO-ISSUERS AND THE PARENT COMPANIES SHALL, JOINTLY AND
SEVERALLY, INDEMNIFY AND HOLD HARMLESS THE INITIAL PURCHASER, ITS AFFILIATES,
ITS OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, TRUSTEES, EMPLOYEES,
REPRESENTATIVES AND AGENTS, AND EACH PERSON, IF ANY, WHO CONTROLS THE INITIAL
PURCHASER WITHIN THE MEANING OF THE SECURITIES ACT OR THE EXCHANGE ACT
(COLLECTIVELY REFERRED TO FOR PURPOSES OF SECTIONS 7(A) AND 8 AS THE INITIAL
PURCHASER), FROM AND AGAINST ANY LOSS, CLAIM, DAMAGE OR LIABILITY, OR ANY ACTION
IN RESPECT THEREOF (INCLUDING, WITHOUT LIMITATION, ANY LOSS, CLAIM, DAMAGE,
LIABILITY OR ACTION RELATING TO PURCHASES AND SALES OF THE SECURITIES), TO WHICH
THE INITIAL PURCHASER MAY BECOME SUBJECT, WHETHER COMMENCED OR THREATENED, UNDER
THE SECURITIES ACT, THE EXCHANGE ACT, ANY OTHER FEDERAL OR STATE STATUTORY LAW
OR REGULATION, AT COMMON LAW OR OTHERWISE, INSOFAR AS SUCH LOSS, CLAIM, DAMAGE,
LIABILITY OR ACTION ARISES OUT OF, OR IS BASED UPON, (I) ANY UNTRUE STATEMENT OR
ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN (A) THE BRIDGE
SYNDICATION MATERIALS, THE PRELIMINARY MARKETING MATERIALS, THE SUPPLEMENTAL
MATERIALS OR THE OFFERING MEMORANDUM OR IN ANY AMENDMENT OR SUPPLEMENT THERETO,
OR IN ANY ISSUER FREE WRITING COMMUNICATION, (B) ANY OTHER INFORMATION PROVIDED
PURSUANT TO SECTION 4(J) OR 4(CC) HEREOF OR (C) OTHER MATERIALS PROVIDED TO
POTENTIAL INVESTORS WITH THE PRIOR WRITTEN CONSENT OF THE CO-ISSUERS OR PARENT
COMPANIES (COLLECTIVELY, THE ITEMS IN (A), (B) AND (C) ABOVE, THE "OFFERING
MATERIALS"), (II) THE OMISSION OR ALLEGED OMISSION TO STATE IN THE OFFERING
MATERIALS A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO
MAKE THE STATEMENTS THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING, OR (III) ANY ACT OR FAILURE TO ACT OR ANY ALLEGED ACT OR
FAILURE TO ACT BY THE INITIAL PURCHASER IN CONNECTION WITH, OR RELATING IN ANY
MANNER TO, THE SECURITIES OR THE OFFERING CONTEMPLATED HEREBY, AND WHICH IS
INCLUDED AS PART OF OR REFERRED TO IN ANY LOSS, CLAIM, DAMAGE, LIABILITY OR
ACTION ARISING OUT OF OR BASED UPON MATTERS COVERED BY CLAUSE (I) OR (II) ABOVE
(PROVIDED THAT THE CO-ISSUERS AND THE PARENT COMPANIES SHALL NOT BE LIABLE UNDER
THIS CLAUSE (III)