RIGHTS AND OBLIGATIONS OF BANK AND
COUNTERPARTY UNDER THE TRANSACTION SHALL BE CANCELLED AND TERMINATED AND
(II) EACH PARTY SHALL BE RELEASED AND DISCHARGED BY THE OTHER PARTY FROM AND
AGREES NOT TO MAKE ANY CLAIM AGAINST THE OTHER PARTY WITH RESPECT TO ANY
OBLIGATIONS OR LIABILITIES OF THE OTHER PARTY ARISING OUT OF AND TO BE PERFORMED
IN CONNECTION WITH THE TRANSACTION EITHER PRIOR TO OR AFTER THE EARLY UNWIND
DATE; PROVIDED THAT, OTHER THAN TO THE EXTENT THE EARLY UNWIND DATE OCCURRED AS
A RESULT OF THE BREACH OF THE UNDERWRITING AGREEMENT BY THE
14
UNDERWRITERS, COUNTERPARTY SHALL REIMBURSE BANK, IN CASH OR SHARES, FOR ANY
COSTS OR EXPENSES (INCLUDING MARKET LOSSES) RELATING TO THE UNWINDING OF ITS OR
ITS AFFILIATE'S HEDGING ACTIVITIES IN CONNECTION WITH THE TRANSACTION (INCLUDING
ANY LOSS OR COST INCURRED AS A RESULT OF ITS TERMINATING, LIQUIDATING, OBTAINING
OR REESTABLISHING ANY HEDGE OR RELATED TRADING POSITION). BANK SHALL NOTIFY
COUNTERPARTY OF SUCH AMOUNT AND COUNTERPARTY SHALL PAY SUCH AMOUNT IN
IMMEDIATELY AVAILABLE FUNDS OR DELIVER SHARES ON THE EARLY UNWIND DATE. BANK AND
COUNTERPARTY REPRESENT AND ACKNOWLEDGE TO THE OTHER THAT, SUBJECT TO THE PROVISO
INCLUDED IN THIS PARAGRAPH, UPON AN EARLY UNWIND, ALL OBLIGATIONS WITH RESPECT
TO THE TRANSACTION SHALL BE DEEMED FULLY AND FINALLY DISCHARGED.
(L)
ROLE OF AGENT.
EACH PARTY AGREES AND ACKNOWLEDGES THAT (I) J.P.
MORGAN SECURITIES INC. ("JPMSI"), AN AFFILIATE OF JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, HAS ACTED SOLELY AS AGENT AND NOT AS PRINCIPAL WITH RESPECT TO THIS
TRANSACTION AND (II) JPMSI HAS NO OBLIGATION OR LIABILITY, BY WAY OF GUARANTY,
ENDORSEMENT OR OTHERWISE, IN ANY MANNER IN RESPECT OF THE TRANSACTION
(INCLUDING, IF APPLICABLE, IN RESPECT OF THE SETTLEMENT THEREOF). EACH PARTY
AGREES IT WILL LOOK SOLELY TO THE OTHER PARTY (OR ANY GUARANTOR IN RESPECT
THEREOF) FOR PERFORMANCE OF SUCH OTHER PARTY'S OBLIGATIONS UNDER THE
TRANSACTION.
(M)
ADDITIONAL PROVISIONS.
(I)
SECTION 9.6(A)(II) OF THE EQUITY DEFINITIONS IS HEREBY AMENDED BY
(1) DELETING FROM THE THIRD LINE THEREOF THE WORD "OR" AFTER THE WORD "OFFICIAL"
AND INSERTING A COMMA THEREFOR, AND (2) DELETING THE PERIOD AT THE END OF
SUBSECTION (II) THEREOF AND INSERTING THE FOLLOWING WORDS THEREFOR " OR (C) AT
BANK'S OPTION, THE OCCURRENCE OF ANY OF THE EVENTS SPECIFIED IN
SECTION 5(A)(VII) (1) THROUGH (9) OF THE AGREEMENT WITH RESPECT TO THAT ISSUER."
(II)
NOTWITHSTANDING SECTION 9.7 OF THE EQUITY DEFINITIONS, EVERYTHING
IN THE FIRST PARAGRAPH OF SECTION 9.7(B) OF THE EQUITY DEFINITIONS AFTER THE
WORDS "CALCULATION AGENT" IN THE THIRD LINE THROUGH THE REMAINDER OF SUCH
SECTION 9.7 SHALL BE DELETED AND REPLACED WITH THE FOLLOWING:
"based on an amount representing the Calculation Agent's determination of the
fair value to Counterparty of an option with terms that would preserve for
Counterparty the economic equivalent of any payment or delivery (assuming
satisfaction of each applicable condition precedent) by the parties in respect
of the relevant Transaction that would have been required after that date but
for the occurrence of the Option Value Event."