FACT RELATES TO INFORMATION
SUPPLIED BY THE COMPANY OR ANY GUARANTOR OR BY THE INITIAL PURCHASERS AND THE
PARTIES' RELATIVE INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO
CORRECT OR PREVENT SUCH STATEMENT OR OMISSION.
(E)
LIMITATION ON LIABILITY. THE COMPANY, THE GUARANTORS AND THE
INITIAL PURCHASERS AGREE THAT IT WOULD NOT BE JUST AND EQUITABLE IF CONTRIBUTION
PURSUANT TO THIS SECTION 7 WERE DETERMINED BY PRO RATA ALLOCATION (EVEN IF THE
INITIAL PURCHASERS WERE TREATED AS ONE ENTITY FOR SUCH PURPOSE) OR BY ANY OTHER
METHOD OF ALLOCATION THAT DOES NOT TAKE ACCOUNT OF THE EQUITABLE CONSIDERATIONS
REFERRED TO IN PARAGRAPH (D) ABOVE.
22
THE AMOUNT PAID OR PAYABLE BY AN INDEMNIFIED PERSON AS A RESULT OF THE LOSSES,
CLAIMS, DAMAGES AND LIABILITIES REFERRED TO IN PARAGRAPH (D) ABOVE SHALL BE
DEEMED TO INCLUDE, SUBJECT TO THE LIMITATIONS SET FORTH ABOVE, ANY LEGAL OR
OTHER EXPENSES INCURRED BY SUCH INDEMNIFIED PERSON IN CONNECTION WITH ANY SUCH
ACTION OR CLAIM. NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 7, IN NO EVENT
SHALL AN INITIAL PURCHASER BE REQUIRED TO CONTRIBUTE ANY AMOUNT IN EXCESS OF THE
AMOUNT BY WHICH THE TOTAL DISCOUNTS AND COMMISSIONS RECEIVED BY SUCH INITIAL
PURCHASER WITH RESPECT TO THE OFFERING OF THE SECURITIES EXCEEDS THE AMOUNT OF
ANY DAMAGES THAT SUCH INITIAL PURCHASER HAS OTHERWISE BEEN REQUIRED TO PAY BY
REASON OF SUCH UNTRUE OR ALLEGED UNTRUE STATEMENT OR OMISSION OR ALLEGED
OMISSION. NO PERSON GUILTY OF FRAUDULENT MISREPRESENTATION (WITHIN THE MEANING
OF SECTION 11(F) OF THE SECURITIES ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM
ANY PERSON WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION. THE INITIAL
PURCHASERS' OBLIGATIONS TO CONTRIBUTE PURSUANT TO THIS SECTION 7 ARE SEVERAL IN
PROPORTION TO THEIR RESPECTIVE PURCHASE OBLIGATIONS HEREUNDER AND NOT JOINT.
(F)
NON-EXCLUSIVE REMEDIES. THE REMEDIES PROVIDED FOR IN THIS SECTION
7 ARE NOT EXCLUSIVE AND SHALL NOT LIMIT ANY RIGHTS OR REMEDIES THAT MAY
OTHERWISE BE AVAILABLE TO ANY INDEMNIFIED PERSON AT LAW OR IN EQUITY.
8.
TERMINATION. THE OBLIGATIONS OF THE INITIAL PURCHASERS HEREUNDER
SHALL BE SUBJECT TO TERMINATION IN THE ABSOLUTE DISCRETION OF THE
REPRESENTATIVE, AT ANY TIME PRIOR TO THE CLOSING TIME, (I) IF THERE HAS OCCURRED
ANY OUTBREAK OR ESCALATION OF HOSTILITIES OR OTHER NATIONAL OR INTERNATIONAL
CALAMITY OR CRISIS OR CHANGE IN ECONOMIC, POLITICAL OR OTHER CONDITIONS, THE
EFFECT OF WHICH ON THE UNITED STATES OR INTERNATIONAL FINANCIAL MARKETS IS SUCH
AS TO MAKE IT, IN THE JUDGMENT OF THE REPRESENTATIVE, IMPRACTICABLE TO MARKET
THE SECURITIES OR ENFORCE CONTRACTS FOR THE SALE OF THE SECURITIES, OR (II) IF
TRADING IN ANY SECURITIES OF THE COMPANY HAS BEEN SUSPENDED BY THE COMMISSION OR
BY THE NEW YORK STOCK EXCHANGE, OR IF TRADING GENERALLY ON THE NEW YORK STOCK
EXCHANGE OR IN THE NASDAQ OVER-THE-COUNTER MARKET HAS BEEN SUSPENDED (INCLUDING
AN AUTOMATIC HALT IN TRADING PURSUANT TO MARKET-DECLINE TRIGGERS, OTHER THAN
THOSE IN WHICH SOLELY PROGRAM TRADING IS TEMPORARILY HALTED), OR LIMITATIONS ON
PRICES FOR TRADING (OTHER THAN LIMITATIONS ON HOURS OR NUMBERS OF DAYS