ACTION; PROVIDED, HOWEVER, THAT THE COMPANY OR THE
GUARANTORS WILL NOT BE LIABLE IN ANY SUCH CASE TO THE EXTENT THAT ANY SUCH LOSS,
CLAIM, DAMAGE OR LIABILITY ARISES OUT OF OR IS BASED UPON ANY SUCH UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED OMISSION MADE
THEREIN IN RELIANCE UPON AND IN CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO
THE COMPANY AND THE GUARANTORS BY OR ON BEHALF OF THE PARTY CLAIMING
INDEMNIFICATION SPECIFICALLY FOR INCLUSION THEREIN; PROVIDED, FURTHER THAT, WITH
RESPECT TO ANY UNTRUE STATEMENT OR OMISSION OF MATERIAL FACT MADE IN ANY
REGISTRATION STATEMENT, THE INDEMNITY AGREEMENT CONTAINED IN THIS
SECTION 6(A) SHALL NOT INURE TO THE BENEFIT OF ANY HOLDER FROM WHOM THE PERSON
ASSERTING ANY SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES PURCHASED
SECURITIES OR NEW SECURITIES CONCERNED, OR ANY PERSON
15
CONTROLLING SUCH HOLDERS, IF A COPY OF THE PROSPECTUS (AS THEN AMENDED OR
SUPPLEMENTS THERETO) WAS NOT SENT OR GIVEN BY OR ON BEHALF OF SUCH HOLDER TO
SUCH PERSON, IF REQUIRED BY LAW SO TO HAVE BEEN DELIVERED, AT OR PRIOR TO THE
WRITTEN CONFIRMATION OF THE SALE OF THE SECURITIES OR THE NEW SECURITIES TO SUCH
PERSON, AND IF THE PROSPECTUS (AS SO AMENDED OR SUPPLEMENTED) WOULD HAVE CURED
THE DEFECT GIVING RISE TO SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR EXPENSES,
UNLESS SUCH FAILURE IS THE RESULT OF NONCOMPLIANCE BY THE COMPANY OR THE
GUARANTORS WITH SECTION 4(D)-(G) HEREOF.
THIS INDEMNITY AGREEMENT SHALL BE IN
ADDITION TO ANY LIABILITY THAT THE COMPANY OR THE GUARANTORS MAY OTHERWISE HAVE.
Each of the Company and the Guarantors also agree to indemnify as provided in
this Section 6(a) or contribute as provided in Section 6(d) hereof to Losses of
each underwriter, if any, of Securities or New Securities, as the case may be,
registered under a Shelf Registration Statement, their directors, officers,
employees, Affiliates or agents and each person who controls such underwriter on
substantially the same basis as that of the indemnification of the Initial
Purchasers and the selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(o) hereof.
(B)
EACH HOLDER OF SECURITIES OR NEW SECURITIES COVERED BY A
REGISTRATION STATEMENT (INCLUDING EACH INITIAL PURCHASER THAT IS A HOLDER, IN
SUCH CAPACITY AND, WITH RESPECT TO ANY PROSPECTUS DELIVERY AS CONTEMPLATED IN
SECTION 4(G) HEREOF, EACH EXCHANGING DEALER) SEVERALLY AND NOT JOINTLY AGREES TO
INDEMNIFY AND HOLD HARMLESS THE COMPANY, THE GUARANTORS AND EACH OF THEIR
RESPECTIVE DIRECTORS, EACH OF ITS OFFICERS WHO SIGNS SUCH REGISTRATION STATEMENT
AND EACH PERSON WHO CONTROLS THE COMPANY OR THE GUARANTORS WITHIN THE MEANING OF
EITHER THE ACT OR THE EXCHANGE ACT, TO THE SAME EXTENT AS THE FOREGOING
INDEMNITY FROM THE COMPANY AND THE GUARANTORS TO EACH SUCH HOLDER, BUT ONLY WITH
REFERENCE TO WRITTEN INFORMATION RELATING TO SUCH HOLDER FURNISHED TO THE
COMPANY BY OR ON BEHALF OF SUCH HOLDER SPECIFICALLY FOR INCLUSION IN THE