THE SECURITIES ACT, (III) IT IS
ENTERING INTO THE TRANSACTION FOR ITS OWN ACCOUNT AND WITHOUT A VIEW TO THE
DISTRIBUTION OR RESALE THEREOF, (IV) THE ASSIGNMENT, TRANSFER OR OTHER
DISPOSITION OF THE TRANSACTION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT AND IS RESTRICTED UNDER THIS CONFIRMATION, THE SECURITIES ACT AND
STATE SECURITIES LAWS, AND (V) ITS FINANCIAL CONDITION IS SUCH THAT IT HAS NO
NEED FOR LIQUIDITY WITH RESPECT TO ITS INVESTMENT IN THE TRANSACTION AND NO NEED
TO DISPOSE OF ANY PORTION THEREOF TO SATISFY ANY EXISTING OR CONTEMPLATED
UNDERTAKING OR INDEBTEDNESS AND IS CAPABLE OF ASSESSING THE MERITS OF AND
UNDERSTANDING (ON ITS OWN BEHALF OR THROUGH INDEPENDENT PROFESSIONAL ADVICE),
AND UNDERSTANDS AND ACCEPTS, THE TERMS, CONDITIONS AND RISKS OF THE TRANSACTION.
(D)
EACH OF DEALER AND COUNTERPARTY AGREES AND ACKNOWLEDGES (A) THAT
THIS CONFIRMATION IS (I) A "SECURITIES CONTRACT," AS SUCH TERM IS DEFINED IN
SECTION 741(7) OF TITLE 11 OF THE UNITED STATES CODE (THE "BANKRUPTCY CODE"),
WITH RESPECT TO WHICH EACH PAYMENT AND DELIVERY HEREUNDER IS A "SETTLEMENT
PAYMENT," AS SUCH TERM IS DEFINED IN SECTION 741(8) OF THE BANKRUPTCY CODE, AND
(II) A "SWAP AGREEMENT," AS SUCH TERM IS DEFINED IN SECTION 101(53B) OF THE
BANKRUPTCY CODE, WITH RESPECT TO WHICH EACH PAYMENT AND DELIVERY HEREUNDER IS A
"TRANSFER," AS SUCH TERM IS DEFINED IN SECTION 101(54) OF THE BANKRUPTCY CODE,
AND (B) THAT DEALER IS ENTITLED TO THE PROTECTIONS AFFORDED BY, AMONG OTHER
SECTIONS, SECTION 362(B)(6), 362(B)(17), 546(E), 546(G), 555 AND 560 OF THE
BANKRUPTCY CODE.
8.
OTHER PROVISIONS:
(A)
RIGHT TO EXTEND.
DEALER MAY POSTPONE ANY POTENTIAL EXERCISE DATE
OR ANY OTHER DATE OF VALUATION OR DELIVERY BY DEALER, WITH RESPECT TO SOME OR
ALL OF THE RELEVANT OPTIONS (IN WHICH EVENT THE CALCULATION AGENT SHALL MAKE
APPROPRIATE ADJUSTMENTS TO THE DELIVERY OBLIGATION), IF DEALER DETERMINES, IN
ITS REASONABLE DISCRETION, THAT SUCH EXTENSION IS REASONABLY NECESSARY TO ENABLE
DEALER TO EFFECT PURCHASES OF SHARES IN CONNECTION WITH ITS HEDGING OR
SETTLEMENT ACTIVITY HEREUNDER IN A MANNER THAT WOULD, IF DEALER WERE
COUNTERPARTY OR AN AFFILIATED PURCHASER OF COUNTERPARTY, BE IN COMPLIANCE WITH
APPLICABLE LEGAL, REGULATORY OR SELF-REGULATORY REQUIREMENTS, OR WITH RELATED
POLICIES AND PROCEDURES APPLICABLE TO DEALER.
(B)
ADDITIONAL TERMINATION EVENTS.
THE OCCURRENCE OF (I) AN EVENT OF
DEFAULT WITH RESPECT TO COUNTERPARTY UNDER THE TERMS OF THE CONVERTIBLE NOTES AS
SET FORTH IN SECTION 6.01 OF THE SUPPLEMENTAL INDENTURE, (II) AN AMENDMENT EVENT
OR (III) A REPAYMENT EVENT SHALL BE AN ADDITIONAL TERMINATION EVENT WITH RESPECT
TO WHICH THE TRANSACTION IS THE SOLE AFFECTED TRANSACTION AND COUNTERPARTY IS
THE SOLE AFFECTED PARTY, AND DEALER SHALL BE THE PARTY ENTITLED TO DESIGNATE AN
EARLY TERMINATION DATE PURSUANT TO SECTION 6(B) OF THE AGREEMENT; PROVIDED THAT
IN THE CASE OF A REPAYMENT EVENT THE TRANSACTION SHALL BE SUBJECT TO TERMINATION
ONLY IN RESPECT OF THE NUMBER OF CONVERTIBLE NOTES THAT CEASE TO BE OUTSTANDING
IN CONNECTION WITH OR AS A RESULT OF SUCH REPAYMENT EVENT.
"Amendment Event"