TO, (A) IN THE CASE OF OFFERS INSIDE
THE UNITED STATES, PERSONS WHOM THE INITIAL PURCHASERS REASONABLY BELIEVE TO BE
QIBS OR, IF ANY SUCH PERSON IS BUYING FOR ONE OR MORE INSTITUTIONAL ACCOUNTS FOR
WHICH SUCH PERSON IS ACTING AS FIDUCIARY OR AGENT, ONLY WHEN SUCH PERSON HAS
REPRESENTED TO THE INITIAL PURCHASERS THAT EACH SUCH ACCOUNT IS A QIB, TO WHOM
NOTICE HAS BEEN GIVEN THAT SUCH SALE OR DELIVERY IS BEING MADE IN RELIANCE ON
RULE 144A, AND, IN EACH CASE, IN TRANSACTIONS UNDER RULE 144A AND (B) IN THE
CASE OF OFFERS OUTSIDE THE UNITED STATES, TO PERSONS OTHER THAN U.S. PERSONS
("NON-U.S. PURCHASERS," WHICH TERM SHALL INCLUDE DEALERS OR OTHER PROFESSIONAL
FIDUCIARIES IN THE UNITED STATES ACTING ON A DISCRETIONARY BASIS FOR NON-U.S.
BENEFICIAL OWNERS (OTHER THAN AN ESTATE OR TRUST)); PROVIDED, HOWEVER, THAT, IN
THE CASE OF THIS CLAUSE (B), IN PURCHASING SUCH SECURITIES SUCH PERSONS ARE
DEEMED TO HAVE REPRESENTED AND AGREED AS PROVIDED UNDER THE CAPTION "NOTICE TO
INVESTORS" CONTAINED IN THE FINAL MEMORANDUM (OR, IF THE FINAL MEMORANDUM IS NOT
IN EXISTENCE, IN THE MOST RECENT MEMORANDUM).
(B)
EACH OF THE INITIAL PURCHASERS REPRESENTS
AND WARRANTS (AS TO ITSELF ONLY) WITH RESPECT TO OFFERS AND SALES OUTSIDE THE
UNITED STATES THAT (I) IT HAS AND WILL COMPLY WITH ALL APPLICABLE LAWS AND
REGULATIONS IN EACH JURISDICTION IN WHICH IT ACQUIRES, OFFERS, SELLS OR DELIVERS
NOTES OR HAS IN ITS POSSESSION OR DISTRIBUTES ANY MEMORANDUM OR ANY SUCH OTHER
MATERIAL, IN ALL CASES AT ITS OWN EXPENSE, (II) THE NOTES HAVE NOT BEEN AND WILL
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT IN ACCORDANCE WITH REGULATION S UNDER THE ACT OR
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
(III) IT HAS OFFERED THE NOTES AND WILL OFFER AND SELL THE NOTES (A) AS PART OF
ITS DISTRIBUTION AT ANY TIME AND (B) OTHERWISE UNTIL 40 DAYS AFTER THE LATER OF
THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, ONLY IN ACCORDANCE WITH
RULE 903 OF REGULATION S AND, ACCORDINGLY, NEITHER IT NOR ANY PERSONS ACTING ON
ITS BEHALF HAVE ENGAGED OR WILL ENGAGE IN ANY DIRECTED SELLING EFFORTS (WITHIN
THE MEANING OF REGULATION S) WITH RESPECT TO THE NOTES, AND ANY SUCH PERSONS
HAVE COMPLIED AND WILL COMPLY WITH THE OFFERING RESTRICTIONS REQUIREMENT OF
REGULATION S.
23
Terms used in this Section 8 and not defined in this Agreement have the meanings
given to them in Regulation S.
SECTION 9.
INDEMNIFICATION AND
CONTRIBUTION.
(A)
THE COMPANY AND THE SUBSIDIARY GUARANTORS, JOINTLY AND
SEVERALLY, AGREE TO INDEMNIFY AND HOLD HARMLESS EACH INITIAL PURCHASER AND EACH
PERSON, IF ANY, WHO CONTROLS ANY INITIAL PURCHASER WITHIN THE MEANING OF
SECTION 15 OF THE ACT OR SECTION 20 OF THE EXCHANGE ACT AGAINST ANY LOSSES,
CLAIMS, DAMAGES OR LIABILITIES TO WHICH ANY INITIAL PURCHASER OR SUCH
CONTROLLING PERSON MAY BECOME SUBJECT UNDER THE ACT, THE