AS AMENDED.
(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 OF THE AGREEMENT AND SECTION 3 OF THE UNDERWRITING AGREEMENT DATED THE TRADE
DATE BETWEEN ISSUER AND UBS SECURITIES LLC ARE TRUE AND CORRECT AND ARE HEREBY
DEEMED TO BE REPEATED TO DEALER AS IF SET FORTH HEREIN.
(IX)
ISSUER UNDERSTANDS 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 BUYER AND ISSUER 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 ISSUER 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, DEALER
REPRESENTS AND WARRANTS TO ISSUER 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 INVESTMENT IN THE
TRANSACTION, (II) IT IS AN "ACCREDITED INVESTOR" AS THAT TERM IS DEFINED IN
REGULATION D AS PROMULGATED UNDER THE SECURITIES ACT, (III) IT IS ENTERING INTO
THE TRANSACTION FOR ITS OWN ACCOUNT 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, (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.
8
(D)
EACH OF DEALER AND ISSUER AGREES AND ACKNOWLEDGES (A) THAT THIS
CONFIRMATION IS (I) A "SECURITIES CONTRACT," AS SUCH TERM IS