DATE, (A) NONE OF ISSUER AND ITS OFFICERS AND
DIRECTORS IS AWARE OF ANY MATERIAL NONPUBLIC INFORMATION REGARDING ISSUER OR THE
SHARES AND (B) ALL REPORTS AND OTHER DOCUMENTS FILED BY ISSUER WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE EXCHANGE ACT WHEN CONSIDERED
AS A WHOLE (WITH THE MORE RECENT SUCH REPORTS AND DOCUMENTS DEEMED TO AMEND
INCONSISTENT STATEMENTS CONTAINED IN ANY EARLIER SUCH REPORTS AND DOCUMENTS), DO
NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR ANY OMISSION OF A
MATERIAL FACT REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE, NOT
MISLEADING.
(II)
WITHOUT LIMITING THE GENERALITY OF SECTION 13.1 OF THE EQUITY
DEFINITIONS, ISSUER ACKNOWLEDGES THAT DEALER IS NOT MAKING ANY REPRESENTATIONS
OR WARRANTIES WITH RESPECT TO THE TREATMENT OF THE TRANSACTION UNDER FASB
STATEMENTS 128, 133 (AS AMENDED), 149 OR 150, EITF ISSUE NO. 00-19, 01-6 OR 03-6
(OR ANY SUCCESSOR ISSUE STATEMENTS) OR UNDER ANY ACCOUNTING STANDARDS INCLUDING
FASB'S LIABILITIES & EQUITY PROJECT.
(III)
PRIOR TO THE TRADE DATE, ISSUER SHALL DELIVER TO DEALER A
RESOLUTION OF ISSUER'S BOARD OF DIRECTORS AUTHORIZING THE TRANSACTION AND SUCH
OTHER CERTIFICATE OR CERTIFICATES AS DEALER SHALL REASONABLY REQUEST.
(IV)
ISSUER 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.
(V)
ISSUER 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.
8
(VI)
ON THE TRADE DATE AND THE PREMIUM PAYMENT DATE (A) THE ASSETS OF
ISSUER AT THEIR FAIR VALUATION EXCEED THE LIABILITIES OF ISSUER, INCLUDING
CONTINGENT LIABILITIES, (B) THE CAPITAL OF ISSUER IS ADEQUATE TO CONDUCT THE
BUSINESS OF ISSUER AND (C) ISSUER HAS THE ABILITY TO PAY ITS DEBTS AND
OBLIGATIONS AS SUCH DEBTS MATURE AND DOES NOT INTEND TO, OR DOES NOT BELIEVE
THAT IT WILL, INCUR DEBT BEYOND ITS ABILITY TO PAY AS SUCH DEBTS MATURE.
(vii)
Issuer shall not take any action to decrease the number of
Available Shares below the Capped Number (each as defined below).
(viii)
The representations and warranties of Issuer set forth in
Section 3 of the Agreement and Section 2 of the Purchase Agreement dated as of
the Trade Date between Issuer and Credit Suisse Securities (USA) LLC, as
representative of the initial purchasers party thereto (the "Purchase
Agreement"), are true and correct as of the Trade Date and the Effective Date
and are hereby deemed to be repeated to Dealer as if set forth herein.
(ix)
Issuer understands no obligations of Dealer to it hereunder will
be entitled to the benefit of deposit insurance and that such