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.
(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 EXEMPT FROM REGISTRATION UNDER
THE SECURITIES ACT BY VIRTUE OF SECTION 4(2) THEREOF.
ACCORDINGLY, COUNTERPARTY
REPRESENTS AND WARRANTS TO DEALER THAT (I) IT HAS THE FINANCIAL ABILITY TO BEAR
THE ECONOMIC RISK OF ITS INVESTMENT IN THE TRANSACTION AND IS ABLE TO BEAR A
TOTAL LOSS OF ITS INVESTMENT AND ITS INVESTMENTS IN AND LIABILITIES IN RESPECT
OF THE TRANSACTION, WHICH IT UNDERSTANDS ARE NOT READILY MARKETABLE, ARE NOT
DISPROPORTIONATE TO ITS NET WORTH, AND IT IS ABLE TO BEAR ANY LOSS IN CONNECTION
WITH THE TRANSACTION, INCLUDING THE LOSS OF ITS ENTIRE
9
INVESTMENT IN THE TRANSACTION, (II) IT IS AN "ACCREDITED INVESTOR" AS THAT TERM
IS DEFINED IN REGULATION D AS PROMULGATED UNDER