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.
(D)
EACH OF DEALER AND ISSUER 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.
(E)
ISSUER SHALL DELIVER TO DEALER AN OPINION OF COUNSEL, DATED AS OF
THE TRADE DATE AND REASONABLY ACCEPTABLE TO DEALER IN FORM AND SUBSTANCE, WITH
RESPECT TO THE MATTERS SET FORTH IN SECTION 3(A) OF THE AGREEMENT.
8.
OTHER PROVISIONS:
(A)
ALTERNATIVE CALCULATIONS AND PAYMENT ON EARLY TERMINATION AND ON
CERTAIN EXTRAORDINARY EVENTS.
IF, SUBJECT TO SECTION 8(K) BELOW, ISSUER SHALL
OWE BUYER ANY AMOUNT PURSUANT TO SECTIONS 12.2, 12.3, 12.6, 12.7 OR 12.9 OF THE
EQUITY DEFINITIONS (EXCEPT IN THE EVENT OF A TENDER OFFER OR A MERGER EVENT, IN
EACH CASE, IN WHICH THE CONSIDERATION OR PROCEEDS TO BE PAID TO HOLDERS OF
SHARES CONSISTS SOLELY OF CASH) OR PURSUANT TO SECTION 6(D)(II) OF THE AGREEMENT
(EXCEPT IN THE EVENT OF AN EVENT OF DEFAULT IN WHICH ISSUER IS THE DEFAULTING
PARTY OR A TERMINATION EVENT IN WHICH ISSUER IS THE AFFECTED PARTY, THAT
RESULTED FROM AN EVENT OR EVENTS WITHIN ISSUER'S CONTROL) (A "PAYMENT
OBLIGATION"), ISSUER SHALL HAVE THE RIGHT, IN ITS SOLE DISCRETION, TO SATISFY
ANY SUCH PAYMENT OBLIGATION BY THE SHARE TERMINATION ALTERNATIVE (AS DEFINED
BELOW) BY GIVING IRREVOCABLE TELEPHONIC NOTICE TO BUYER, CONFIRMED IN WRITING
WITHIN ONE SCHEDULED TRADING DAY, BETWEEN THE HOURS OF 9:00 A.M. AND 4:00 P.M.
NEW YORK CITY TIME ON THE MERGER DATE, TENDER OFFER DATE, ANNOUNCEMENT DATE OR
EARLY TERMINATION DATE, AS APPLICABLE ("NOTICE OF SHARE TERMINATION").
UPON
SUCH NOTICE OF SHARE TERMINATION, THE FOLLOWING PROVISIONS SHALL APPLY ON THE
SCHEDULED TRADING DAY IMMEDIATELY FOLLOWING THE MERGER DATE, THE TENDER OFFER
DATE, ANNOUNCEMENT DATE OR EARLY TERMINATION DATE, AS APPLICABLE:
Share Termination Alternative:
Applicable and means that Issuer shall deliver to Dealer the Share Termination
Delivery Property on the date on which the Payment Obligation would otherwise be
due pursuant to Section 12.7 or 12.9