CLAIM AGAINST THE OTHER PARTY WITH
RESPECT TO ANY OBLIGATIONS OR LIABILITIES OF EITHER PARTY ARISING OUT OF AND TO
BE PERFORMED IN CONNECTION WITH THE TRANSACTION EITHER PRIOR TO OR AFTER THE
EARLY UNWIND DATE.
DEALER AND COUNTERPARTY REPRESENT AND ACKNOWLEDGE TO THE
OTHER THAT UPON AN EARLY UNWIND AND FOLLOWING THE PAYMENT REFERRED TO ABOVE, ALL
OBLIGATIONS WITH RESPECT TO THE TRANSACTION SHALL BE DEEMED FULLY AND FINALLY
DISCHARGED.
(l)
Governing Law.
THE AGREEMENT AND THIS CONFIRMATION SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE
OF LAW DOCTRINE).
15
9.
Arbitration.
(A)
ALL PARTIES TO THIS CONFIRMATION ARE GIVING UP THE RIGHT TO SUE EACH OTHER
IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS PROVIDED BY THE
RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED.
(B)
ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY'S ABILITY TO
HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY LIMITED.
(C)
THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS STATEMENTS AND
OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN IN COURT
PROCEEDINGS.
(D)
THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR AWARD.
(E)
THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS
WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY, UNLESS COUNTERPARTY IS
A MEMBER OF THE ORGANIZATION SPONSORING THE ARBITRATION FACILITY, IN WHICH CASE
ALL ARBITRATORS MAY BE AFFILIATED WITH THE SECURITIES INDUSTRY.
(F)
THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS FOR BRINGING
A CLAIM IN ARBITRATION.
IN SOME CASES, A CLAIM THAT IS INELIGIBLE FOR
ARBITRATION MAY BE BROUGHT IN COURT.
(G)
THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS FILED, AND ANY
AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS CONFIRMATION.
(H)
COUNTERPARTY AGREES THAT ANY AND ALL CONTROVERSIES THAT MAY ARISE BETWEEN
COUNTERPARTY AND DEALER, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR
RELATING TO THE AGREEMENT OR THE TRANSACTION HEREUNDER, SHALL BE DETERMINED BY
ARBITRATION CONDUCTED BEFORE THE NEW YORK STOCK EXCHANGE, INC. ("NYSE") OR NASD
DISPUTE RESOLUTION ("NASD-DR"), OR, IF THE NYSE AND NASD-DR DECLINE TO HEAR THE
MATTER, BEFORE THE AMERICAN ARBITRATION ASSOCIATION, IN ACCORDANCE WITH THEIR
ARBITRATION RULES THEN IN FORCE.
THE AWARD OF THE ARBITRATOR SHALL BE FINAL,
AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT, STATE OR
FEDERAL, HAVING JURISDICTION.
(I)
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST
ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION OR WHO IS A MEMBER
OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY
CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (I) THE CLASS
CERTIFICATION IS DENIED; (II) THE CLASS IS DECERTIFIED; OR (III) COUNTERPARTY IS
EXCLUDED FROM THE CLASS BY THE COURT.
(J)
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE