AND ON THE TERMS DESCRIBED IN THE DISCLOSURE PACKAGE AND THE
FINAL OFFERING MEMORANDUM OR TO ENFORCE CONTRACTS FOR THE SALE OF SECURITIES.
ANY TERMINATION PURSUANT TO THIS SECTION 10 SHALL BE WITHOUT LIABILITY ON THE
PART OF (A) THE COMPANY TO THE INITIAL PURCHASER OR (B)
THE INITIAL PURCHASER
TO THE COMPANY.
SECTION 11.
NO ADVISORY OR FIDUCIARY RESPONSIBILITY.
THE COMPANY ACKNOWLEDGES
AND AGREES THAT: (I) THE PURCHASE AND SALE OF THE NOTES PURSUANT TO THIS
AGREEMENT, INCLUDING THE DETERMINATION OF THE OFFERING PRICE OF THE NOTES AND
ANY RELATED DISCOUNTS AND COMMISSIONS, IS AN ARM'S-LENGTH COMMERCIAL TRANSACTION
BETWEEN THE COMPANY, ON THE ONE HAND, AND THE INITIAL PURCHASER, 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 THE INITIAL PURCHASER 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) THE INITIAL PURCHASER 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 THE INITIAL PURCHASER HAS ADVISED OR IS
CURRENTLY ADVISING THE COMPANY ON OTHER MATTERS) AND THE INITIAL PURCHASER HAS
NO OBLIGATION TO THE COMPANY WITH RESPECT TO THE OFFERING CONTEMPLATED HEREBY
EXCEPT THE OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT; (IV) THE INITIAL
PURCHASER AND ITS RESPECTIVE AFFILIATES MAY BE ENGAGED IN A BROAD RANGE OF
TRANSACTIONS THAT INVOLVE INTERESTS THAT DIFFER FROM THOSE OF THE COMPANY AND
THAT THE INITIAL PURCHASER HAS NO OBLIGATION TO DISCLOSE ANY OF SUCH INTERESTS
BY VIRTUE OF ANY ADVISORY, AGENCY OR FIDUCIARY RELATIONSHIP; AND (V) THE INITIAL
PURCHASER HAS NOT PROVIDED ANY LEGAL, ACCOUNTING, REGULATORY OR TAX ADVICE WITH
RESPECT TO THE OFFERING CONTEMPLATED HEREBY AND THE COMPANY HAS CONSULTED ITS
OWN LEGAL, ACCOUNTING, REGULATORY AND TAX ADVISORS TO THE EXTENT IT DEEMED
APPROPRIATE.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Initial Purchaser with respect to
the subject matter hereof.
18
SECTION 12.
REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
THE
RESPECTIVE INDEMNITIES, CONTRIBUTION, AGREEMENTS, REPRESENTATIONS, WARRANTIES
AND OTHER STATEMENTS OF THE COMPANY, OF ITS OFFICERS AND OF THE INITIAL
PURCHASER SET FORTH IN OR MADE PURSUANT TO THIS AGREEMENT SHALL REMAIN OPERATIVE
AND IN FULL FORCE AND EFFECT, REGARDLESS OF (I) ANY INVESTIGATION, OR STATEMENT
AS TO THE RESULT HEREOF, MADE BY OR ON BEHALF OF THE INITIAL PURCHASER OR THE
COMPANY OR ANY OF ITS OR THEIR PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS
OR ANY CONTROLLING PERSON, AS THE CASE MAY BE, (II) ACCEPTANCE OF THE NOTES AND
PAYMENT FOR THEM HEREUNDER OR (III) ANY TERMINATION OF THIS AGREEMENT.
SECTION 13.
NOTICES.
ALL COMMUNICATIONS