copy to:
Attn:
General Counsel
Facsimile:
212-297-2653
(b)
Address for notices or communications to Dealer:
To:
Deutsche Bank AG, London Branch
c/o Deutsche Bank AG, New York
60 Wall Street
New York, New York 10005
Attn:
Documentation Department
Telephone:
+ 44 20 7545 8193
Facsimile:
+ 44 11 3336 2009
7.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS:
(A)
IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES IN THE
AGREEMENT AND THOSE CONTAINED ELSEWHERE HEREIN, ISSUER REPRESENTS AND WARRANTS
TO AND FOR THE BENEFIT OF, AND AGREES WITH, DEALER AS FOLLOWS:
(I)
ON THE TRADE DATE, (A) NONE OF ISSUER AND ITS OFFICERS AND
DIRECTORS IS AWARE OF ANY MATERIAL NONPUBLIC INFORMATION REGARDING ISSUER OR THE
SHARES AND (B) ALL REPORTS AND OTHER DOCUMENTS FILED BY ISSUER WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED (THE "EXCHANGE ACT"), WHEN CONSIDERED AS A WHOLE (WITH THE MORE
RECENT SUCH REPORTS AND DOCUMENTS DEEMED TO SUPERCEDE INCONSISTENT STATEMENTS
CONTAINED IN ANY EARLIER SUCH REPORTS AND DOCUMENTS), DO NOT CONTAIN ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR ANY OMISSION OF A MATERIAL FACT REQUIRED TO BE
STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES IN WHICH THEY WERE MADE, NOT MISLEADING.
(II)
ISSUER ACKNOWLEDGES THAT NEITHER DEALER NOR ANY OF ITS AFFILIATES
IS MAKING ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TREATMENT OF THE
TRANSACTION UNDER FASB STATEMENTS 128, 133 (AS AMENDED), 149 OR 150, EITF ISSUE
NOS. 00-19, 01-06 OR 03-06 (OR ANY SUCCESSOR ISSUE STATEMENTS) OR UNDER FASB'S
LIABILITIES & EQUITY PROJECT.
(III)
PRIOR TO THE TRADE DATE, ISSUER SHALL DELIVER TO DEALER A
RESOLUTION OF ISSUER'S BOARD OF DIRECTORS AUTHORIZING THE TRANSACTION AND SUCH
OTHER CERTIFICATE OR CERTIFICATES AS DEALER SHALL REASONABLY REQUEST.
(IV)
ISSUER 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.
(V)
ISSUER IS NOT, AND AFTER GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY WILL NOT BE, REQUIRED TO REGISTER AS AN "INVESTMENT COMPANY"
AS SUCH TERM IS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
8
(VI)
ON THE TRADE DATE (A) THE ASSETS OF ISSUER AT THEIR FAIR VALUATION
EXCEED THE LIABILITIES OF ISSUER, INCLUDING CONTINGENT LIABILITIES, (B) THE
CAPITAL OF ISSUER IS ADEQUATE TO CONDUCT THE BUSINESS OF ISSUER AND (C) ISSUER
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.
(vii)
Issuer shall not take any action to decrease the number of
Available Shares below the Capped Number (each as defined below).
(viii)
The representations and warranties of Issuer set forth in Section
3