it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), the Initial Purchaser shall
not be required to contribute, in the aggregate, any amount in excess of the
Aggregate Amount.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(E)
NONEXCLUSIVE REMEDY. THE INDEMNITY AND
CONTRIBUTION AGREEMENTS CONTAINED IN THIS SECTION 8 ARE IN ADDITION TO ANY
LIABILITY THAT ANY OF THE INDEMNIFYING PARTIES MAY OTHERWISE HAVE TO THE
INDEMNIFIED PARTIES, AND DO NOT LIMIT IN ANY WAY RIGHTS OR REMEDIES WHICH MAY
OTHERWISE BE AVAILABLE AT LAW OR IN EQUITY.
9.
CONDITIONS.
(A)
CONDITIONS TO OBLIGATIONS OF INITIAL
PURCHASER.
THE OBLIGATIONS OF THE INITIAL PURCHASER TO PURCHASE THE NOTES UNDER
THIS AGREEMENT ARE SUBJECT TO THE SATISFACTION OR WAIVER OF EACH OF THE
FOLLOWING CONDITIONS:
(I)
REPRESENTATIONS AND WARRANTIES OF THE
ISSUERS, PARENT AND DJL.
ALL THE REPRESENTATIONS AND WARRANTIES OF EACH OF THE
ISSUERS, PARENT AND DJL IN THIS AGREEMENT AND IN EACH OF THE OTHER OPERATIVE
DOCUMENTS TO WHICH IT IS A PARTY SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (OTHER THAN REPRESENTATIONS AND WARRANTIES WITH A MATERIAL ADVERSE
EFFECT QUALIFIER OR OTHER MATERIALITY QUALIFIER, WHICH SHALL BE TRUE AND CORRECT
AS WRITTEN) AT AND AS OF THE CLOSING DATE AFTER GIVING EFFECT TO THE
TRANSACTIONS CONSUMMATED ON OR PRIOR TO THE CLOSING DATE
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WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS OF SUCH DATE.
ON OR PRIOR
TO THE CLOSING DATE, EACH OF THE ISSUERS AND PARENT AND, TO THE KNOWLEDGE OF THE
ISSUERS, EACH OTHER PARTY TO THE OPERATIVE DOCUMENTS (OTHER THAN THE INITIAL
PURCHASER) SHALL HAVE PERFORMED OR COMPLIED IN ALL MATERIAL RESPECTS WITH ALL OF
THE AGREEMENTS AND SATISFIED IN ALL MATERIAL RESPECTS ALL CONDITIONS ON THEIR
RESPECTIVE PARTS REQUIRED TO BE PERFORMED, COMPLIED WITH OR SATISFIED AS OF OR
PRIOR TO THE CLOSING DATE PURSUANT TO THE OPERATIVE DOCUMENTS.
(II)
AVAILABILITY OF OFFERING CIRCULAR.
THE
OFFERING CIRCULAR, IN FORM AND SUBSTANCE SATISFACTORY TO THE INITIAL PURCHASER
AND ITS COUNSEL, SHALL HAVE BEEN PRINTED AND COPIES MADE AVAILABLE TO THE
INITIAL PURCHASER NOT LATER THAN 12:00 NOON, NEW YORK CITY TIME, AT LEAST FIVE
BUSINESS DAYS PRIOR TO THE CLOSING OR AT SUCH LATER DATE AND TIME AS THE INITIAL
PURCHASER MAY APPROVE.
(III)
NO INJUNCTION.
NO INJUNCTION, RESTRAINING
ORDER OR ORDER OF ANY NATURE BY A GOVERNMENTAL AUTHORITY SHALL HAVE BEEN ISSUED
AS OF THE CLOSING DATE THAT WOULD PREVENT OR MATERIALLY INTERFERE WITH THE
ISSUANCE AND SALE OF THE NOTES OR THE CONSUMMATION OF ANY OF THE OTHER
TRANSACTIONS; AND NO STOP ORDER SUSPENDING THE QUALIFICATION OR EXEMPTION FROM
QUALIFICATION OF