REGULATION M, UNTIL THE SECOND EXCHANGE BUSINESS DAY
IMMEDIATELY FOLLOWING THE SETTLEMENT DATE RELATED TO SUCH SETTLEMENT PERIOD (IT
BEING UNDERSTOOD THAT COUNTERPARTY MAKES NO REPRESENTATIONS PURSUANT TO THIS
CLAUSE WITH RESPECT TO ANY ACTION OF DEALER OR ANY UNDERWRITER OR THEIR
RESPECTIVE AFFILIATES).
(III)
ON THE TRADE DATE, DURING THE SETTLEMENT PERIOD AND DURING ANY EARLY
SETTLEMENT PERIOD, NEITHER COUNTERPARTY NOR ANY "AFFILIATE" OR "AFFILIATED
PURCHASER" (EACH AS DEFINED IN RULE 10B-18 UNDER THE EXCHANGE ACT
("RULE 10B-18")) SHALL DIRECTLY OR INDIRECTLY (INCLUDING, WITHOUT LIMITATION, BY
MEANS OF ANY CASH-SETTLED OR OTHER DERIVATIVE INSTRUMENT) PURCHASE, OFFER TO
PURCHASE, PLACE ANY BID OR LIMIT ORDER THAT WOULD EFFECT A PURCHASE OF, OR
COMMENCE ANY TENDER OFFER RELATING TO, ANY SHARES (OR AN EQUIVALENT INTEREST,
INCLUDING A UNIT OF BENEFICIAL INTEREST IN A TRUST OR LIMITED PARTNERSHIP OR A
DEPOSITORY SHARE) OR ANY SECURITY CONVERTIBLE INTO OR EXCHANGEABLE OR
EXERCISABLE FOR SHARES.
(IV)
WITHOUT LIMITING THE GENERALITY OF SECTION 13.1 OF THE EQUITY
DEFINITIONS, COUNTERPARTY ACKNOWLEDGES THAT DEALER IS NOT MAKING ANY
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TREATMENT OF THE TRANSACTION
UNDER ANY ACCOUNTING STANDARDS INCLUDING FASB STATEMENTS 128, 133, 149 (EACH AS
AMENDED), OR 150, EITF ISSUE NO. 00-19, 01-6, 03-6 OR 07-5 (OR ANY SUCCESSOR
ISSUE STATEMENTS) OR UNDER FASB'S LIABILITIES & EQUITY PROJECT.
(V)
WITHOUT LIMITING THE GENERALITY OF SECTION 3(A)(III) OF THE AGREEMENT,
THE TRANSACTION WILL NOT VIOLATE RULE 13E-1 OR RULE 13E-4 UNDER THE EXCHANGE
ACT.
8
(VI)
PRIOR TO THE TRADE DATE, COUNTERPARTY SHALL DELIVER TO DEALER A
RESOLUTION OF COUNTERPARTY'S BOARD OF DIRECTORS OR A COMMITTEE THEREOF
AUTHORIZING THE TRANSACTION AND SUCH OTHER CERTIFICATE OR CERTIFICATES AS DEALER
SHALL REASONABLY REQUEST.
(VII)
COUNTERPARTY IS NOT ENTERING INTO THIS CONFIRMATION TO CREATE ACTUAL OR
APPARENT TRADING ACTIVITY IN THE SHARES (OR ANY SECURITY CONVERTIBLE INTO OR
EXCHANGEABLE FOR SHARES) OR TO RAISE OR DEPRESS OR OTHERWISE MANIPULATE THE
PRICE OF THE SHARES (OR ANY SECURITY CONVERTIBLE INTO OR EXCHANGEABLE FOR
SHARES) OR OTHERWISE IN VIOLATION OF THE EXCHANGE ACT.
(VIII)
COUNTERPARTY IS NOT, AND AFTER GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY WILL NOT BE, REQUIRED TO REGISTER AS AN "INVESTMENT COMPANY"
AS SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(IX)
ON EACH OF THE TRADE DATE AND THE PREMIUM PAYMENT DATE, COUNTERPARTY
IS NOT, OR WILL NOT BE, "INSOLVENT" (AS SUCH TERM IS DEFINED UNDER
SECTION 101(32) OF THE U.S. BANKRUPTCY CODE (TITLE 11 OF THE UNITED STATES CODE)
(THE "BANKRUPTCY CODE")) AND COUNTERPARTY WOULD BE ABLE TO PURCHASE THE SHARES
HEREUNDER IN COMPLIANCE WITH THE LAWS OF THE JURISDICTION OF ITS INCORPORATION.
(X)
NO STATE OR LOCAL (INCLUDING NON-U.S. JURISDICTIONS) LAW, RULE,
REGULATION OR REGULATORY ORDER APPLICABLE TO THE SHARES WOULD GIVE RISE TO ANY
REPORTING, CONSENT, REGISTRATION OR OTHER REQUIREMENT (INCLUDING WITHOUT
LIMITATION A REQUIREMENT TO OBTAIN PRIOR APPROVAL FROM ANY PERSON OR ENTITY) AS
A RESULT OF DEALER OR ITS AFFILIATES OWNING OR HOLDING (HOWEVER DEFINED) SHARES.
(XI)
THE REPRESENTATIONS AND WARRANTIES