AND, IN EACH CASE, IN
TRANSACTIONS UNDER RULE 144A.
13.
SURVIVAL OF REPRESENTATIONS AND AGREEMENTS.
THE RESPECTIVE REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS INDEMNITIES
AND OTHER STATEMENTS OF THE COMPANY AND THE GUARANTOR, THEIR RESPECTIVE OFFICERS
AND THE INITIAL PURCHASERS SET FORTH IN THIS AGREEMENT OR MADE BY OR ON BEHALF
OF THEM, RESPECTIVELY PURSUANT TO THIS AGREEMENT SHALL REMAIN OPERATIVE AND IN
FULL FORCE AND EFFECT REGARDLESS OF (I) ANY INVESTIGATION MADE BY OR ON BEHALF
OF THE COMPANY, THE GUARANTOR, ANY OF THEIR RESPECTIVE OFFICERS OF DIRECTORS,
THE INITIAL PURCHASERS OR ANY CONTROLLING PERSON THEREOF REFERRED TO IN SECTIONS
8 AND 9 HEREOF, AND (II) DELIVERY OF AND PAYMENT FOR THE INITIAL NOTES TO AND BY
THE INITIAL PURCHASERS, AND SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT
OF, ANY SUCCESSORS, ASSIGNS, HEIRS, PERSONAL REPRESENTATIVES OF THE COMPANY, THE
GUARANTOR, THE INITIAL PURCHASERS AND THE INDEMNIFIED PARTIES REFERRED TO IN
SECTION 8 HEREOF.
THE RESPECTIVE REPRESENTATIONS, COVENANTS, AGREEMENTS,
INDEMNITIES AND OTHER STATEMENTS SET FORTH IN SECTIONS 7, 8, 9, 13 AND 14 SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
14.
EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(A)
THIS AGREEMENT SHALL BECOME EFFECTIVE UPON
EXECUTION AND DELIVERY OF A COUNTERPART HEREOF BY EACH OF THE PARTIES HERETO.
32
(B)
THIS AGREEMENT MAY BE TERMINATED IN THE SOLE
DISCRETION OF THE INITIAL PURCHASERS BY NOTICE TO THE COMPANY FROM THE INITIAL
PURCHASERS, WITHOUT LIABILITY (OTHER THAN WITH RESPECT TO SECTIONS 8 AND 9) ON
THE INITIAL PURCHASERS' PART TO THE COMPANY OR THE GUARANTOR IN THE EVENT THAT
THE COMPANY OR THE GUARANTOR HAS FAILED, REFUSED OR BEEN UNABLE TO PERFORM OR
SATISFY ALL CONDITIONS ON THEIR RESPECTIVE PARTS TO BE PERFORMED OR SATISFIED
HEREUNDER ON OR PRIOR TO THE CLOSING DATE, ANY OTHER CONDITION TO THE
OBLIGATIONS OF THE INITIAL PURCHASERS HEREUNDER AS PROVIDED IN SECTION 10 IS NOT
FULFILLED WHEN AND AS REQUIRED, OR IF:
(i)
in the reasonable judgment of the
Initial Purchasers, any material adverse change has occurred since the
respective dates as of which information is given in the Offering Memorandum
(or, if the Offering Memorandum is not in existence, the most recent Preliminary
Offering Memorandum) in the condition (financial or otherwise), business,
properties, assets, liabilities, prospects, net worth, results of operations or
cash flows of the Company, its subsidiary and the Guarantor, taken as a whole,
other than as set forth in the Offering Memorandum;
(ii)
any domestic or international event or act
or occurrence has materially disrupted, or in the opinion of the Initial
Purchasers will in the immediate future materially disrupt, the market for the
Company's or the Guarantor's securities or for securities in general;
(iii)
trading in securities generally on the New
York Stock Exchange, or the Nasdaq National Market, has been suspended or made
subject to material limitations, or minimum or maximum prices for trading has
been fixed, or maximum ranges for prices for securities has been required, on
the New York Stock Exchange or the Nasdaq National Market, or