Crucial 2011 Annual Report Download - page 106

(vi) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, an “investment company”
as such term is defined in the Investment Company Act of 1940, as amended.
(vii) On the Trade Date and on the Premium Payment Date (A) the assets of Counterparty at their fair valuation exceed the
liabilities of Counterparty, including contingent liabilities, (B) the capital of Counterparty is adequate to conduct the business of
Counterparty and (C) Counterparty 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.
(viii) (A) During each period starting on the first Expiration Date and ending on the last Expiration Date, in each case sharing
a common Final Disruption Date (each a “ Settlement Period ”),
the Shares or securities that are convertible into, or exchangeable or
exercisable for Shares shall not be, subject to a “restricted period,” as such term is defined in Regulation M under the Exchange Act (“
Regulation M ”) and (B) Counterparty shall not engage in any “distribution,”
as such term is defined in Regulation M, other than a
distribution meeting the requirements of the exceptions set forth in sections 101(b)(10) and 102(b)(7) of Regulation M, until the second
Exchange Business Day immediately following the relevant Settlement Period.
(ix) During each Settlement Period, neither Counterparty nor any “affiliate” or “affiliated purchaser” (
each as defined in Rule
10b-18 under the Exchange Act (“ Rule 10b-18 ”)) shall directly or indirectly (including, without limitation, by means of any cash-
settled or other derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or
commence any tender offer relating to, any Shares (or an equivalent interest, including a unit of beneficial interest in a trust or limited
partnership or a depository share) or any security convertible into or exchangeable or exercisable for Shares.
(b) Each of Dealer and Counterparty 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 Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from
registration under the Securities Act of 1933, as amended (the “ Securities Act ”),
by virtue of Section 4(2) thereof. Accordingly, Counterparty
represents and warrants to Dealer and Dealer represents to Counterparty 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.
(d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant”
and/or
“financial participant” within the meaning of Sections 101(22), 101(53C) and 101(22A) of Title 11 of the United States Code (the “
Bankruptcy
Code ”). The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,”
as such term is defined in
Section 741(7) of 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, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and
560 of the Bankruptcy Code.
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