MATERIAL FACT CONTAINED IN THE PRELIMINARY
OFFERING MEMORANDUM OR THE OFFERING MEMORANDUM OR IN ANY AMENDMENT OR SUPPLEMENT
THERETO OR IN ANY INFORMATION PROVIDED BY THE COMPANY PURSUANT TO SECTION 4(E)
OR (II) THE OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, AND SHALL REIMBURSE EACH INITIAL PURCHASER PROMPTLY UPON DEMAND FOR
ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY THAT INITIAL PURCHASER IN
CONNECTION WITH INVESTIGATING OR DEFENDING OR PREPARING TO DEFEND
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AGAINST OR APPEARING AS A THIRD PARTY WITNESS IN CONNECTION WITH ANY SUCH LOSS,
CLAIM, DAMAGE, LIABILITY OR ACTION AS SUCH EXPENSES ARE INCURRED; PROVIDED,
HOWEVER, THAT THE COMPANY AND THE NOTE GUARANTORS SHALL NOT BE LIABLE IN ANY
SUCH CASE TO THE EXTENT THAT ANY SUCH LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION
ARISES OUT OF, OR IS BASED UPON, AN UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT
IN OR OMISSION OR ALLEGED OMISSION FROM ANY OF SUCH DOCUMENTS IN RELIANCE UPON
AND IN CONFORMITY WITH ANY INITIAL PURCHASERS' INFORMATION; AND PROVIDED,
FURTHER, THAT WITH RESPECT TO ANY SUCH UNTRUE STATEMENT IN OR OMISSION FROM THE
PRELIMINARY OFFERING MEMORANDUM, THE INDEMNITY AGREEMENT CONTAINED IN THIS
SECTION 9(A) SHALL NOT INURE TO THE BENEFIT OF ANY SUCH INITIAL PURCHASER TO THE
EXTENT THAT THE SALE TO THE PERSON ASSERTING ANY SUCH LOSS, CLAIM, DAMAGE,
LIABILITY OR ACTION WAS AN INITIAL RESALE BY SUCH INITIAL PURCHASER AND ANY SUCH
LOSS, CLAIM, DAMAGE, LIABILITY OR ACTION OF OR WITH RESPECT TO SUCH INITIAL
PURCHASER RESULTS FROM THE FACT THAT BOTH (A) TO THE EXTENT REQUIRED BY
APPLICABLE LAW, A COPY OF THE OFFERING MEMORANDUM WAS NOT SENT OR GIVEN TO SUCH
PERSON AT OR PRIOR TO THE WRITTEN CONFIRMATION OF THE SALE OF SUCH NOTES TO SUCH
PERSON AND (B) THE UNTRUE STATEMENT IN OR OMISSION FROM THE PRELIMINARY OFFERING
MEMORANDUM WAS CORRECTED IN THE OFFERING MEMORANDUM UNLESS, IN EITHER CASE, SUCH
FAILURE TO DELIVER THE OFFERING MEMORANDUM WAS A RESULT OF NON-COMPLIANCE BY THE
COMPANY WITH SECTION 4(B).
(B)
EACH INITIAL PURCHASER, SEVERALLY AND NOT JOINTLY, SHALL INDEMNIFY AND HOLD
HARMLESS THE COMPANY, ITS AFFILIATES (OTHER THAN AN INITIAL PURCHASER TO THE
EXTENT IT WOULD BE DEEMED AN AFFILIATE), THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, REPRESENTATIVES AND AGENTS, AND EACH PERSON, IF ANY, WHO CONTROLS THE
COMPANY WITHIN THE MEANING OF THE SECURITIES ACT OR THE EXCHANGE ACT
(COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION 9(B) AND SECTION 10 AS
THE COMPANY), FROM AND AGAINST ANY LOSS, CLAIM, DAMAGE OR LIABILITY, JOINT OR
SEVERAL, OR ANY ACTION IN RESPECT THEREOF, TO WHICH THE COMPANY 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)