TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) THAT IS (A) PURSUANT TO CLAUSE (2)(D) PRIOR TO THE END OF
THE 40 DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT OR (B) PURSUANT TO CLAUSE (2)(F) PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN
EACH OF THE FOREGOING CASES IN CLAUSES (i)(A) OR (B), TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED AS TO
ANY NOTE EVIDENCED HEREBY UPON DELIVERY TO THE TRUSTEE BY THE COMPANY OR THE
HOLDER THEREOF OF A WRITTEN REQUEST FOR THE REMOVAL HEREOF, IN ANY CASE AT ANY
TIME AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses, damages
or liabilities under the Securities Act, arising from or relating to any resale
or transfer of any Security.
29
13. Research Analyst Independence. The Issuers and the Guarantors
acknowledge that the Initial Purchasers' research analysts and research
departments are required to be independent from their respective investment
banking divisions and are subject to certain regulations and internal policies,
and that such Initial Purchasers' research analysts may hold views and make
statements or investment recommendations and/or publish research reports with
respect to the Issuers, the Guarantors and/or the offering that differ from the
views of their respective investment banking divisions. The Issuers and the
Guarantors hereby waive and release, to the fullest extent permitted by law, any
claims that any Issuer or any of the Guarantors may have against the Initial
Purchasers with respect to any conflict of interest that may arise from the fact
that the views expressed by their independent research analysts and research
departments may be different from or inconsistent with the views or advice
communicated to the Issuers or the Guarantors by such Initial Purchasers'
investment banking divisions. The Issuers and the Guarantors acknowledge that
each of the Initial Purchasers is a full service securities firm and as such
from time to time, subject to applicable securities laws, may effect
transactions for its own account or the account of its customers and hold long
or short positions in debt or equity securities of the Company.
14. No Fiduciary Duty. The Issuers and the Guarantors hereby
acknowledge that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm's-length commercial transaction between the Issuers and the
Guarantors,