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 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 AND 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, AND (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.
(D)
EACH OF DEALER AND COUNTERPARTY AGREES AND
ACKNOWLEDGES (A) THAT THIS CONFIRMATION IS (I) A "SECURITIES CONTRACT," AS SUCH
TERM IS DEFINED IN SECTION 741(7) OF TITLE 11 OF THE UNITED STATES CODE (THE
"BANKRUPTCY CODE"), WITH RESPECT TO WHICH EACH PAYMENT AND DELIVERY HEREUNDER IS
A "SETTLEMENT PAYMENT," AS SUCH TERM IS DEFINED IN SECTION 741(8) OF THE
BANKRUPTCY CODE, AND (II) A "SWAP AGREEMENT," AS SUCH TERM IS DEFINED IN SECTION
101(53B) OF THE BANKRUPTCY CODE, WITH RESPECT TO WHICH EACH PAYMENT AND DELIVERY
HEREUNDER IS A "TRANSFER," AS SUCH TERM IS DEFINED IN SECTION 101(54) OF THE
BANKRUPTCY CODE, AND (B) THAT DEALER IS ENTITLED TO THE PROTECTIONS AFFORDED BY,
AMONG OTHER SECTIONS, SECTION 362(B)(6), 362(B)(17), 546(E), 546(G), 555 AND 560
OF THE BANKRUPTCY CODE.
8.
OTHER PROVISIONS:
(A)
RIGHT TO EXTEND.
DEALER MAY POSTPONE ANY
POTENTIAL EXERCISE DATE OR ANY OTHER DATE OF VALUATION OR DELIVERY BY DEALER,
WITH RESPECT TO SOME OR ALL OF THE RELEVANT OPTIONS (IN WHICH EVENT THE
CALCULATION AGENT SHALL MAKE APPROPRIATE ADJUSTMENTS TO THE DELIVERY
OBLIGATION), IF DEALER DETERMINES, IN ITS REASONABLE DISCRETION, THAT SUCH
EXTENSION IS REASONABLY NECESSARY TO ENABLE DEALER TO EFFECT PURCHASES OF SHARES
IN CONNECTION WITH ITS HEDGING OR SETTLEMENT ACTIVITY HEREUNDER IN A MANNER THAT
WOULD, IF DEALER WERE COUNTERPARTY OR AN AFFILIATED PURCHASER OF COUNTERPARTY,
BE IN COMPLIANCE WITH APPLICABLE LEGAL, REGULATORY OR SELF-REGULATORY
REQUIREMENTS, OR WITH RELATED POLICIES AND PROCEDURES APPLICABLE TO DEALER.
(B)
ADDITIONAL TERMINATION EVENTS.
THE
OCCURRENCE OF (I) AN EVENT OF DEFAULT WITH RESPECT TO