A "SECURITIES CONTRACT" AS DEFINED IN
SECTION 741(7) OF THE U.S. BANKRUPTCY CODE (TITLE 11 OF THE UNITED STATES CODE)
(THE "BANKRUPTCY CODE"), A "SWAP AGREEMENT" AS DEFINED IN SECTION 101(53B) OF
THE BANKRUPTCY CODE, OR A "FORWARD CONTRACT" AS DEFINED IN SECTION 101(25) OF
THE BANKRUPTCY CODE, AND THE PARTIES HERETO TO BE ENTITLED TO THE PROTECTIONS
AFFORDED BY, AMONG OTHER SECTIONS, SECTIONS 362(B)(6), 362(B)(17), 362(B)(27),
555, 556, 560 AND 561 OF THE BANKRUPTCY CODE;
(B)
THE AGREEMENT TO BE A "MASTER NETTING AGREEMENT" AS DEFINED IN
SECTION 101(38A) OF THE BANKRUPTCY CODE;
(C)
A PARTY'S RIGHT TO LIQUIDATE OR TERMINATE ANY TRANSACTION, NET OUT
OR OFFSET TERMINATION VALUES OR PAYMENT AMOUNTS, AND TO EXERCISE ANY OTHER
REMEDIES UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT OR TERMINATION EVENT UNDER
THE AGREEMENT WITH RESPECT TO THE OTHER PARTY OR ANY EXTRAORDINARY EVENT THAT
RESULTS IN THE TERMINATION OR CANCELLATION OF ANY TRANSACTION TO CONSTITUTE A
"CONTRACTUAL RIGHT" (AS DEFINED IN THE BANKRUPTCY CODE);
(D)
ALL PAYMENTS FOR, UNDER OR IN CONNECTION WITH EACH TRANSACTION,
ALL PAYMENTS FOR THE SHARES AND THE TRANSFER OF SUCH SHARES TO CONSTITUTE
"SETTLEMENT PAYMENTS" AND "TRANSFERS" (AS DEFINED IN THE BANKRUPTCY CODE).
11.
CREDIT SUPPORT DOCUMENTS.
THE PARTIES HERETO ACKNOWLEDGE THAT NO
TRANSACTION HEREUNDER IS SECURED BY ANY COLLATERAL THAT WOULD OTHERWISE SECURE
THE OBLIGATIONS OF COUNTERPARTY HEREIN OR PURSUANT TO THE AGREEMENT.
12.
LIMITATION ON SET-OFF.
(A)
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE AGREEMENT OR THE EQUITY DEFINITIONS, THE CALCULATION OF ANY
SETTLEMENT AMOUNTS AND UNPAID AMOUNTS SHALL BE CALCULATED SEPARATELY FOR (A) ALL
TERMINATED TRANSACTIONS IN THE SHARES OF THE ISSUER THAT QUALIFY AS EQUITY UNDER
APPLICABLE ACCOUNTING RULES
(COLLECTIVELY, THE "EQUITY SHARES") AS DETERMINED BY THE CALCULATION AGENT AND
(B) ALL OTHER TERMINATED TRANSACTIONS UNDER THE AGREEMENT INCLUDING, WITHOUT
LIMITATION, TRANSACTIONS IN SHARES OTHER THAN THOSE OF THE ISSUER (COLLECTIVELY,
THE "OTHER SHARES") AND THE NETTING AND SET-OFF PROVISIONS OF THE AGREEMENT
SHALL ONLY OPERATE TO PROVIDE NETTING AND SET-OFF (I) AMONG TERMINATED
TRANSACTIONS IN THE EQUITY SHARES AND (II) AMONG TERMINATED TRANSACTIONS IN THE
OTHER SHARES.
IN NO EVENT SHALL THE NETTING AND SET-OFF PROVISIONS OF THE
AGREEMENT OPERATE TO PERMIT NETTING AND SET-OFF BETWEEN TERMINATED TRANSACTIONS
IN THE EQUITY SHARES AND TERMINATED TRANSACTIONS IN THE OTHER SHARES.
(B)
THE PARTIES AGREE TO AMEND SECTION 6 OF THE AGREEMENT BY ADDING A
NEW SECTION 6(F) THERETO AS FOLLOWS:
"(f)
Upon the occurrence of an Event of Default or Termination Event with
respect to a party who is the Defaulting Party or the Affected Party ("X"), the
other party ("Y") will have the right (but not be obliged) without prior notice
to X or any other person to set-off or apply any obligation of X owed to Y (or
any Affiliate of Y) (whether or not matured or contingent and whether or not
arising under the Agreement, and regardless of the currency, place of payment or
booking office of the obligation) against any obligation of Y (or any Affiliate