TRADE DATE, NEITHER COUNTERPARTY
NOR ANY "AFFILIATE" OR "AFFILIATED PURCHASER" (EACH AS DEFINED IN RULE 10B-18 OF
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, EXCEPT THROUGH DEALER.
(III)
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 FASB STATEMENTS 149 OR 150, EITF ISSUE NO. 00-19 (OR ANY
SUCCESSOR ISSUE STATEMENTS) OR UNDER FASB'S LIABILITIES & EQUITY PROJECT.
(IV)
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.
(V)
PRIOR TO THE TRADE DATE, COUNTERPARTY SHALL
DELIVER TO DEALER A RESOLUTION OF COUNTERPARTY'S BOARD OF DIRECTORS AUTHORIZING
THE TRANSACTION AND SUCH OTHER CERTIFICATE OR CERTIFICATES AS DEALER SHALL
REASONABLY REQUEST.
(VI)
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.
(VII)
COUNTERPARTY IS NOT, AND AFTER GIVING EFFECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY WILL NOT BE, AN "INVESTMENT COMPANY" AS
SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
(VIII)
ON THE TRADE DATE (A) THE ASSETS OF COUNTERPARTY
AT THEIR FAIR VALUATION EXCEED THE LIABILITIES OF COUNTERPARTY, INCLUDING
CONTINGENT LIABILITIES, (B) THE CAPITAL OF COUNTERPARTY IS ADEQUATE TO CONDUCT
THE BUSINESS OF COUNTERPARTY AND (C) COUNTERPARTY 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.
(IX)
THE REPRESENTATIONS AND WARRANTIES OF
COUNTERPARTY SET FORTH IN SECTION 3 OF THE AGREEMENT AND SECTION 3 OF THE
UNDERWRITING AGREEMENT ARE TRUE AND CORRECT AND ARE HEREBY DEEMED TO BE REPEATED
TO DEALER AS IF SET FORTH HEREIN.
9
(X)
COUNTERPARTY UNDERSTANDS THAT NO
OBLIGATIONS OF DEALER TO IT HEREUNDER WILL BE ENTITLED TO THE BENEFIT OF DEPOSIT
INSURANCE AND THAT SUCH OBLIGATIONS WILL NOT BE GUARANTEED BY ANY AFFILIATE OF
DEALER OR ANY GOVERNMENTAL AGENCY.
(B)
EACH OF DEALER AND COUNTERPARTY AGREES AND
REPRESENTS THAT IT IS AN "ELIGIBLE CONTRACT PARTICIPANT" AS DEFINED IN SECTION
1A(12) OF THE U.S. COMMODITY EXCHANGE ACT, AS AMENDED.
(C)
EACH OF DEALER AND COUNTERPARTY
ACKNOWLEDGES THAT THE OFFER AND SALE OF THE TRANSACTION TO IT IS INTENDED TO BE