in respect of any default of such
Initial Purchaser under this Agreement.
SECTION 18.
NO ADVISORY OR FIDUCIARY RESPONSIBILITY.
EACH OF THE COMPANY AND THE GUARANTORS ACKNOWLEDGES AND AGREES THAT: (I) THE
PURCHASE AND SALE OF THE SECURITIES PURSUANT TO THIS AGREEMENT, INCLUDING THE
DETERMINATION OF THE OFFERING PRICE OF THE SECURITIES AND ANY RELATED DISCOUNTS
AND COMMISSIONS, IS AN ARM'S-LENGTH COMMERCIAL TRANSACTION BETWEEN THE COMPANY
AND THE GUARANTORS, ON THE ONE HAND, AND THE SEVERAL INITIAL PURCHASERS, ON THE
OTHER HAND, AND THE COMPANY AND THE GUARANTORS ARE CAPABLE OF EVALUATING AND
UNDERSTANDING AND UNDERSTAND AND ACCEPT 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 EACH
INITIAL PURCHASER IS AND HAS BEEN ACTING SOLELY AS A PRINCIPAL AND IS NOT THE
AGENT OR FIDUCIARY OF THE COMPANY, THE GUARANTORS OR THEIR RESPECTIVE
AFFILIATES, STOCKHOLDERS, CREDITORS OR EMPLOYEES OR ANY OTHER PARTY; (III) NO
INITIAL PURCHASER HAS ASSUMED OR WILL ASSUME AN ADVISORY OR FIDUCIARY
RESPONSIBILITY IN FAVOR OF THE COMPANY AND THE GUARANTORS WITH RESPECT TO ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THE PROCESS LEADING THERETO
(IRRESPECTIVE OF WHETHER SUCH INITIAL PURCHASER HAS ADVISED OR IS CURRENTLY
ADVISING THE COMPANY AND THE GUARANTORS ON OTHER MATTERS) OR ANY OTHER
OBLIGATION TO THE COMPANY AND THE GUARANTORS EXCEPT THE OBLIGATIONS EXPRESSLY
SET FORTH IN THIS AGREEMENT; (IV) THE SEVERAL INITIAL PURCHASERS AND THEIR
RESPECTIVE AFFILIATES MAY BE ENGAGED IN A BROAD RANGE OF TRANSACTIONS THAT
INVOLVE INTERESTS THAT DIFFER FROM THOSE OF THE COMPANY AND THE GUARANTORS AND
THAT THE SEVERAL INITIAL PURCHASERS HAVE NO OBLIGATION TO DISCLOSE ANY OF SUCH
INTERESTS BY VIRTUE OF ANY FIDUCIARY OR ADVISORY RELATIONSHIP; AND (V) THE
INITIAL PURCHASERS HAVE NOT PROVIDED ANY LEGAL, ACCOUNTING, REGULATORY OR TAX
ADVICE WITH RESPECT TO THE OFFERING CONTEMPLATED HEREBY AND THE COMPANY AND THE
GUARANTORS HAVE CONSULTED THEIR OWN LEGAL, ACCOUNTING, REGULATORY AND TAX
ADVISORS TO THE EXTENT THEY DEEMED APPROPRIATE.
28
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company, the Guarantors and the several Initial
Purchasers, or any of them, with respect to the subject matter hereof.
The
Company and the Guarantors hereby waive and release, to the fullest extent
permitted by law, any claims that the Company and the Guarantors may have
against the several Initial Purchasers with respect to any breach or alleged
breach of fiduciary duty.
SECTION 19.
GENERAL PROVISIONS.
THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES TO THIS AGREEMENT AND SUPERSEDES
ALL PRIOR WRITTEN OR ORAL AND ALL CONTEMPORANEOUS ORAL AGREEMENTS,
UNDERSTANDINGS AND NEGOTIATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF.
THIS
AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH ONE OF WHICH SHALL
BE AN ORIGINAL, WITH THE SAME EFFECT AS IF THE SIGNATURES THERETO AND HERETO
WERE UPON THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A
SIGNATURE PAGE TO THIS AGREEMENT BY TELECOPIER, FACSIMILE, EMAIL OR