THE NOTES SHALL BE
DETERMINED SOLELY BY THE EXPRESS PROVISIONS OF THIS AGREEMENT, AND FBR SHALL NOT
BE LIABLE EXCEPT FOR THE PERFORMANCE OF SUCH DUTIES AND OBLIGATIONS WITH RESPECT
TO THE NOTES AS ARE SPECIFICALLY SET FORTH IN THIS
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AGREEMENT.
THE COMPANY ACKNOWLEDGES AND AGREES THAT: (I) THE PURCHASE AND SALE
OF THE NOTES PURSUANT TO THIS AGREEMENT, INCLUDING THE DETERMINATION OF THE
PURCHASE PRICE AND ANY RELATED DISCOUNTS AND COMMISSIONS, IS AN ARM'S-LENGTH
COMMERCIAL TRANSACTION BETWEEN THE COMPANY, ON THE ONE HAND, AND FBR, ON THE
OTHER HAND, AND THE COMPANY IS CAPABLE OF EVALUATING AND UNDERSTANDING AND
UNDERSTANDS AND ACCEPTS THE TERMS, RISKS AND CONDITIONS OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; (II) IN CONNECTION WITH EACH TRANSACTION
CONTEMPLATED HEREBY AND THE PROCESS LEADING TO SUCH TRANSACTION, FBR IS AND HAS
BEEN ACTING SOLELY AS A PRINCIPAL AND IS NOT THE FINANCIAL ADVISOR, AGENT OR
FIDUCIARY OF THE COMPANY OR ITS AFFILIATES, STOCKHOLDERS, CREDITORS OR EMPLOYEES
OR ANY OTHER PARTY; (III) FBR HAS NOT ASSUMED AND WILL NOT ASSUME AN ADVISORY,
AGENCY OR FIDUCIARY RESPONSIBILITY IN FAVOR OF THE COMPANY WITH RESPECT TO ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THE PROCESS LEADING THERETO
(IRRESPECTIVE OF WHETHER FBR HAS ADVISED OR IS CURRENTLY ADVISING THE COMPANY ON
OTHER MATTERS); AND (IV) FBR AND ITS AFFILIATES MAY BE ENGAGED IN A BROAD RANGE
OF TRANSACTIONS THAT INVOLVE INTERESTS THAT DIFFER FROM THOSE OF THE COMPANY AND
THAT FBR HAS NO OBLIGATION TO DISCLOSE ANY OF SUCH INTERESTS.
THE COMPANY
ACKNOWLEDGES THAT FBR DISCLAIMS ANY IMPLIED DUTIES (INCLUDING ANY FIDUCIARY
DUTY), COVENANTS OR OBLIGATIONS ARISING FROM ITS PERFORMANCE OF THE DUTIES AND
OBLIGATIONS EXPRESSLY SET FORTH HEREIN.
THE COMPANY HEREBY WAIVES AND RELEASES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIMS THAT THE COMPANY MAY HAVE
AGAINST FBR WITH RESPECT TO ANY BREACH OR ALLEGED BREACH OF AGENCY OR FIDUCIARY
DUTY.
11.
GOVERNING LAW; HEADINGS.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANY OTHER STATE.
THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A
MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
12.
PARTIES AT INTEREST.
THE AGREEMENT HEREIN SET FORTH HAS BEEN AND
IS MADE SOLELY FOR THE BENEFIT OF FBR AND THE COMPANY AND THE CONTROLLING
PERSONS, DIRECTORS AND OFFICERS REFERRED TO IN SECTION 8 HEREOF, AND THEIR
RESPECTIVE SUCCESSORS, ASSIGNS, EXECUTORS AND ADMINISTRATORS.
NO OTHER PERSON,
PARTNERSHIP, ASSOCIATION OR CORPORATION (INCLUDING A PURCHASER, IN ITS CAPACITY
AS SUCH, FROM FBR) SHALL ACQUIRE OR HAVE ANY RIGHT UNDER OR BY VIRTUE OF THIS
AGREEMENT.
13.
COUNTERPARTS.
THIS AGREEMENT MAY BE SIGNED BY THE PARTIES IN
COUNTERPARTS, WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT AMONG
THE PARTIES.
[SIGNATURE PAGE FOLLOWS]
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If the foregoing correctly sets forth the understanding among the Company and
FBR, please so indicate