EXHIBIT A
March 15, 2002
To: Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
From: Bank of America, N.A.
c/o Banc of America Securities LLC
Equity Financial Products
0 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-230-8610
Re: Forward Delivery Transaction
Reference: NY-8535
The purpose of this letter agreement is to confirm the terms and conditions
of the Transaction entered into between Bank of America, N.A. (either "BofA" or
"Party A") and Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. (either the
"Counterparty" or "Party B") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 1996 ISDA Equity
Derivatives Definitions (the "Equity Definitions"), as published by the
International Swaps and Derivatives Association, Inc., are incorporated into
this Confirmation. In the event of any inconsistency between the Equity
Definitions and this Confirmation, this Confirmation shall govern. This
Confirmation evidences a complete binding agreement between the Counterparty and
BofA as to the terms of the Transaction to which this Confirmation relates. This
Transaction shall be considered to be a Share Transaction for purposes of the
Equity Definitions.
Each party is hereby advised, and each such party acknowledges, that the
other party has engaged in, or refrained from engaging in, substantial financial
transactions and has taken other material actions in reliance upon the parties'
entry into the Transaction to which this Confirmation relates on the terms and
conditions set forth below.
1. If the Counterparty and BofA have entered into an ISDA Master Agreement
(the "Agreement"), then this Confirmation supplements, forms a part of, and is
subject to, that Agreement, as amended and supplemented from time to time. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below. If the Counterparty and BofA have not entered into an
ISDA Master Agreement, then they agree to use all reasonable efforts to promptly
negotiate, execute and deliver an agreement in the form of the ISDA Master
Agreement (Multicurrency-Cross Border) (the "ISDA Form"), with such
modifications as the Counterparty and BofA will in good faith agree. Upon the
execution of such an agreement, this Confirmation will supplement, form a part
of, and be subject to, that agreement. All provisions contained or incorporated
by reference in that agreement upon its execution will govern this Confirmation
except as expressly modified below. Until the parties execute and deliver that
agreement, this Confirmation, together with all other documents relating to the
ISDA Form (each a "Confirmation") confirming transactions (each a "Transaction")
entered into between us (notwithstanding anything to the contrary in a
Confirmation), shall supplement, form a part of, and be subject to an agreement
in the form of the ISDA Form as if we had executed an agreement in such form
(without any Schedule, but with the elections made herein) on the Trade Date of
the first such Transaction between us (such agreement, or the ISDA Form,
hereinafter the "Agreement"). In the event of any inconsistency between the
provisions of the Agreement and this Confirmation, this Confirmation will
prevail for the purpose of this Transaction.
Page 1 of 12
March 15, 2002
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
(a) General Terms:
Trade Date: March 15, 2002
Effective Date: May 20, 2002
Shares: The common shares of Triad Hospitals,
Inc.(the "Issuer")(Exchange symbol
"TRI")
Exchange: New York Stock Exchange
Related Exchanges: Chicago Board Options Exchange, Chicago
Mercantile Exchange and Pacific Stock
Exchange
Maturity Date: The final Valuation Date (expected to be
May 15, 2003)
Exchange Business Day: Any day on which there is trading of the
Shares on the Exchange
Settlement Currency: USD
Clearance System: The customary manner for delivery of
Shares in certificated form bearing a
Rule 145 restrictive legend.
(b) Determination of Number of Shares to be Delivered:
Number of Shares to be Delivered: For each Settlement Date, the sum of
the Daily Forward Delivery Amounts for
each Valuation Date that has occurred
up to and including the Settlement
Valuation Date with respect to such
Settlement Date for which settlement
has not occurred.
Daily Forward Delivery Amount: For each Valuation Date on which a
Forward Delivery Event occurs (on a per
day, non-cumulative basis), 4,000
Shares. For each other Valuation Date,
zero Shares.
Forward Delivery Event: Any Valuation Date on which the Closing
Price is greater than the Threshold
Price.
Closing Price: The closing price per Share on the
Exchange at the Valuation Time on each
Valuation Date
Valuation Time: At the close of trading during the
regular trading session on the Exchange
Valuation Date: Each of the 250 Exchange Business Days
immediately following the Effective
Date, unless there is a Market
Disruption Event on any such day. If
there is a Market Disruption Event on
such a day, then the Valuation Date
that would have occurred on such day
shall be postponed and shall be the
first succeeding Exchange Business
Day on which there is no Market
Disruption Event, unless there is a
Market Disruption Event on each of
the five Exchange Business Days
Page 2 of 12
March 15, 2002
immediately following the original date
that would have been the Valuation
Date (the "Scheduled Valuation Date").
In that case, (i) that fifth Exchange
Business Day shall be deemed to be the
Valuation Date, for such Exchange
Business Day and each of the five
immediately preceding Exchange Business
Days, notwithstanding the Market
Disruption Event, (ii) the Calculation
Agent shall determine whether or not a
Forward Delivery Event has occurred
for such Exchange Business Day and
each of the five immediately preceding
Exchange Business Days based on its good
faith estimate of the closing price
for the Share that would have prevailed
but for that Market Disruption Event
as of the Valuation Time on that fifth
Exchange Business Day and such good
faith estimate shall be the Closing
Price.
Any Valuation Dates that occur on the
same day as a result of the
postponements set forth hereof shall be
counted separately for purposes of
determining the Maturity Date.
For the avoidance of doubt, the first
two lines of Section 4.3(a) of the
Equity Definitions are amended to
read: 'Section 4.3 Market Disruption
Event. (a) "Market Disruption Event'
in relation to a Forward Delivery
Transaction means:'.
Threshold Price: U.S. $34.2278
Forward Delivery Price: U.S. $41.7905
(c) Physical Settlement Terms:
Physical Settlement: Applicable, unless the Counterparty
elects Cash Settlement in accordance
with the terms set forth below. If
Physical Settlement is applicable, on
each Settlement Date, BofA shall pay to
Counterparty an amount expressed in the
Settlement Currency equal to the
Settlement Price, and Counterparty
shall deliver to BofA the Number of
Shares to be Delivered through the
Clearance System on a delivery versus
payment basis. For the avoidance of
doubt, it is understood that physical
delivery of certificates for Shares
bearing a Rule 145 restrictive legend
will be an appropriate manner of
delivery.
Settlement Price: The Number of Shares to be Delivered
multiplied by the Forward Delivery
Price (subject to the Additional
Conditions as set forth below)
Settlement Valuation Date: The Friday of each week,
from and including May 24, 2002, to and
including the Maturity Date, or if such
day is not an Exchange Business Day, the
next following Exchange Business Day,
unless there is a Market Disruption
Event on such day in which case the
terms as set forth under the definition
of "Valuation Date" shall apply
Settlement Date: The third Clearance System Business Day
following each Settlement Valuation
Date, unless a Settlement Disruption
Event prevents delivery of the Shares
on such day. If a
Page 3 of 12
March 15, 2002
Settlement Disruption Event prevents
delivery on such day, then the
Settlement Date will be the first
succeeding day on which delivery of the
Shares can take place through the
relevant Clearance System unless a
Settlement Disruption Event prevents
settlement on each of the 10 relevant
Clearance System Business Days
immediately following the original date
that, but for the Settlement Disruption
Event, would have been the Settlement
Date. In that case, (a) if such Shares
can be delivered in any other
commercially reasonable manner, then
the Settlement Date will be the first
day on which settlement of a sale of
Shares executed on that 10th relevant
Clearance System Business Day
customarily would take place using such
other commercially reasonable manner of
delivery (which other manner of delivery
will be deemed the relevant Clearance
System for the purposes of the delivery
of the relevant Shares), and (b) if such
Shares cannot be delivered in any other
commercially reasonable manner, then
the Settlement Date will be postponed
until delivery can be effected through
the relevant Clearance System or in any
other commercially reasonable manner.
With respect to each Settlement Date,
the provisions of Sections 6.5, 6.6,
6.7, 6.8 and 6.10 of the Equity
Definitions will be applicable, except
that all references in such provisions
to "Physically-Settled option
Transaction" shall be read as references
to a "Forward Delivery Transaction".
Additional Conditions: If Physical Settlement is applicable the
Counterparty shall to the satisfaction
of BofA cause the Shares to be
delivered on each Settlement Date
without any legend restricting transfer
on the certificate evidencing such
Shares other than a Rule 145 restrictive
legend. The Counterparty will use
commercially reasonable efforts to
assist BofA in obtaining the removal of
any Rule 145 restrictive legend in order
to effectuate the settlement of a resale
of such Shares by BofA or an affiliate
of BofA in a transaction effected in
accordance with Rule 145(d)(1) or (2)
under the Securities Act of 1933, as
amended (a "Rule 145(d) Sale"),
including but not limited to, the
delivery of certificates or documents
as to matters of fact regarding the
Counterparty required by the Transfer
Agent or the Issuer in connection with
such sales.
(d) Cash Settlement Terms:
Option to Cash Settle: Counterparty shall have the right, but
not the obligation, to cash settle any
Daily Forward Delivery Amount, in whole,
but not in part, by executing to and
delivering written notice specifying
that Cash Settlement applies on any
Currency Business Day that is at least
five (5) Currency Business Days prior to
the applicable Settlement Valuation
Date.
Settlement Price: The Number of Shares to be Delivered
multiplied by the Forward Delivery Price
Page 4 of 12
March 15, 2002
Cash Settlement: If Cash Settlement is applicable, BofA
shall pay to the Counterparty the
Settlement Price and Counterparty shall
pay to BofA an amount equal to the
Number of Shares to be Delivered times
the Cash Settlement Price and such
payment obligation shall be netted.
Settlement Currency: U.S. Dollars
Cash Settlement Price: The closing price per Share on the
Exchange at the Valuation Time on the
Settlement Valuation Date
Cash Settlement Payment Date: Three Currency Business Days following
each Settlement Valuation Date
Adjustments:
Method of Adjustment: Calculation Agent Adjustment, where
following any Potential Adjustment
Event, the Calculation Agent will
determine whether such Potential
Adjustment Event has a material effect
on the theoretical value of the
Transaction, and if so, will (i) make
the corresponding adjustments, if any,
to any one or more of, the Forward
Delivery Price, Threshold Price,
Settlement Price, Daily Forward Delivery
Amount, Number of Shares to be
Delivered, and any other variable
relevant to the valuation,
settlement or payment terms of this
Transaction (including but not limited
to the payment of any extraordinary
dividends to BofA) as the Calculation
Agent reasonably determines appropriate
to account for that material effect and
(ii) determine the effective date of the
adjustment.
Extraordinary Events:
Consequence of Merger Events
(a) Share-for-Share: Alternative Obligation, where on or
after the relevant Merger Date, in the
case of Forward Delivery Transaction,
the number of New Shares to which a
holder of the Forward Delivery Amounts
would be entitled upon consummation of
the Merger Event will be deemed to be
the Forward Delivery Amounts, and the
New Shares and their issuer will be
deemed the "Shares" and the "Issuer"
respectively, and if necessary, the
Calculation Agent will adjust any of
relevant terms accordingly.
Notwithstanding the above, the
Calculation Agent will determine if
such Merger Event adjustment affects
the theoretical value of the
Transaction and if so, may in its
reasonable discretion make any
adjustments to the terms of the
Transaction as it deems necessary to
reflect the characteristics (including
without limitation, the volatility,
dividend practice and policy and
liquidity) of the New Shares.
(b) Share-for-Other: Cancellation and Payment(as defined
below)
(c) Share-for-Combined: Cancellation and Payment (as defined
below)
Nationalization, Insolvency or
De-Listing Event: Cancellation and Payment (as defined
below)
Page 5 of 12
March 15, 2002
"De-Listing Event" means that the Shares cease to be listed on, or quoted by,
any of the New York Stock Exchange, the American Stock Exchange or the Nasdaq
Stock Market (or their respective successors) for any reason (other than a
Merger Event). Upon the occurrence of a De-Listing Event, Cancellation and
Payment (as defined below) will apply, with the Announcement Date deemed to be
the date that the De-Listing Event first occurs (as determined by the
Calculation Agent).
Cancellation and Payment means, in the case of a Forward Delivery Transaction,
the Transaction will be cancelled as of the Merger Date, in the case of a Merger
Event, or the Announcement Date in the case of a Nationalization, Insolvency or
De-Listing Event, and Counterparty will pay to BofA or BofA shall pay to the
Counterparty, as the case may be, an amount in cash equal to the "Termination
Value", such payment to be made not later than three Currency Business Days
following the determination by the Calculation Agent of such amount (denominated
in the currency for settlement of the Transactions as determined by the
Calculation Agent). The "Termination Value" shall be an amount as determined by
the Calculation Agent representing the fair value to BofA and its affiliates and
the Counterparty of an agreement that would preserve for BofA and its affiliates
and the Counterparty the economic equivalent of the aggregate payment and
deliveries in respect of the Forward Delivery Transaction that would have been
required but for the occurrence of the Merger Event, Nationalization, Insolvency
or De-Listing Event (taking into account any adjustment that may have been
calculated on or prior to such date). The Calculation Agent shall calculate such
amount based on the following factors (and such other factors as it deems
appropriate) (i) the volatility of the Shares, (ii) dividends on the Shares,
(iii) a value ascribed to the Shares equal to the consideration, if any, paid in
respect of such Shares to holders of such Shares at the time of the Merger
Event, Nationalization, Insolvency or De-Listing Event (iv) prevailing interest
rates, and (v) a term equal to the number of days from the Announcement Date
through and including the Maturity Date. For the avoidance of doubt, for
purposes of calculating the value of this Transaction on any given day, such
value shall be based on a number of Shares equal to the Maximum Number of Daily
Forward Delivery Amounts for such Transaction.
Maximum Number of Daily Forward Delivery Amounts means, for any day from but
excluding the Trade Date, to and including the Maturity Date, an amount as
determined by the Calculation Agent equal to the sum of the Daily Forward
Delivery Amounts for each day up to and including the Maturity Date for which
settlement has not occurred, assuming for purposes of calculating the Maximum
Number of Daily Forward Delivery Amounts only that a Forward Delivery Event will
occur on each Valuation Date until the Maturity Date.
3. Payments on Early Termination: Second Method and Loss
4. Calculation Agent: BofA
5. Account Details:
Account for payments to Counterparty:
United States Trust Company of New York
ABA# 000-000-000
In favor of: Welsh, Carson, Xxxxxxxx & Xxxxx VIII
A/C # 69-86862
Attn: Xxxxxxx Xxxxxx, (000) 000-0000
Account for payments to BofA:
Bank of America, NA
San Francisco, CA
SWIFT: XXXXXX0X
Bank Routing: 000-000-000
Account Name: Bank of America
Account Number: 12333-34172
Account for delivery of Shares to BofA: Will advise.
Page 6 of 12
March 15, 2002
6. Offices and Notice Information:
(a) The Office of BofA for the Transaction is: Charlotte
Address for Notices:
Bank of America, N.A.
c/o Banc of America Securities LLC
Equity Financial Products
0 Xxxx 00xx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 212-230-8610
(b) The Office of the Counterparty for the Transaction is:
Inapplicable. Counterparty is not a Multibranch Party.
Address for Notices:
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
7. Other Provisions:
(a) Counterparty Representations. Counterparty represents and
-----------------------------
warrants to and for the benefit of BofA, as of the date hereof, and
continuously until termination of this Agreement, as follows:
(i) Non-affiliated representation. Counterparty represents and
warrants to BofA, that it is not, and during the term of this
Transaction, will not become an affiliate, within the meaning of
Rule 144(a)(1) of the Securities Act of 1933, as amended (the
"Securities Act"), of the Issuer.
(ii) The Counterparty represents and warrants to BofA that it (i)
is an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3), (7) or (8) under the Securities Act, (ii) is acquiring
the instruments described in the Transaction for its own account,
and not with a view to distribution and (iii) understands and
acknowledges that the Transaction has not and will not be
registered under the Securities Act.
(iii) No Information. The Counterparty represents and warrants to
BofA that it is not entering into this Transaction while in
possession of material, non-public information concerning the
business, operations or prospects of the Issuer. "Material"
information for these purposes is any information to which an
investor would reasonably attach importance in reaching a decision
to buy, sell, or hold securities of the Issuer.
(iv) Counterparty has the legal capacity, power and right to
execute, deliver, and perform its obligations under, and in
accordance with the Agreement, any Credit Support Document to
which Counterparty is a party, and this Transaction.
(b) This confirmation shall be governed by the law of the State of New
York without reference to the choice of law rules thereof. The
parties hereto irrevocably submit to the exclusive jurisdiction of
the courts of the State of New York and the United States Court
for the Southern District of New York in connection with all
matters relating hereto and waive any objection to the laying of
venue in, and any claim of inconvenient forum with respect to,
these courts.
Page 7 of 12
March 15, 2002
(c) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY
--------------------------------
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.
(d) Counterparty and BofA hereby acknowledge and agree that BofA has
authorized Counterparty to disclose this Transaction to any and
all persons, and there are no express or implied agreements,
arrangements or understandings to the contrary, and BofA hereby
waives any and all claims to any proprietary rights with respect
to this Transaction, and authorizes Counterparty to use any
information which Counterparty receives or has received with
respect to this Transaction in any manner.
(e) Relationship Between Parties:
Counterparty represents that:
(i) Non-Reliance. It is acting for its own account, and it has
made its own independent decision to enter into this Transaction
and as to whether this Transaction is appropriate or proper for it
based upon its own judgment and upon advice from such advisors as
it has deemed necessary. It is not relying on any communication
(written or oral) of the other party as investment advice or as a
recommendation to enter into this Transaction; it being understood
that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment
advice or a recommendation to enter into this Transaction. It has
not received from the other party any assurance or guarantee as to
the expected results of this Transaction.
(ii) Evaluation and Understanding. It is capable of evaluating and
understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of this Transaction. It is also capable of
assuming, and assumes, the financial and other risks of this
Transaction.
(iii) Status of Parties. The other party is not acting as a
fiduciary or an advisor for it in respect of this Transaction.
(f) Additional Covenants of Counterparty. Counterparty covenants
-------------------------------------
and agrees with BofA that:
(i) if the Transaction relates to a position in restricted or
control securities within the meaning and scope of Rule 144,
promulgated under the Securities Act, Counterparty shall: (A)
provide accurate and complete information upon request of BofA
concerning the manner of acquisition, duration of holding period,
or the size of such securities position, any affiliation with the
Issuer, and prior or anticipated sales, agreements, rights,
options, sales, lock-up arrangements, aggregation requirements,
and/or any other information relating to such securities; (B) file
or cause to be filed with the Securities and Exchange Commission
or any other governmental, regulatory, or self-regulatory
authority, any and all disclosure documents which may be required
or appropriate, including, but not limited to, the disclosure
documents required by Rule 144 and/or Sections 13 or 16 of the
Securities Exchange Act of 1934, as amended; and (C) promptly
advise BofA prior to making any sales of, or executing any other
transaction or agreement involving, such securities which are the
subject of this Transaction; and
(ii) if the Transaction may involve, require or result in the
delivery of securities or other financial assets, Counterparty is
the legal and sole beneficial owner of the pledged Shares, and the
same are free and clear of any all liens, charges, equities of
redemption, rights of pre-emption, and any other security
interests or encumbrances whatsoever other than Rule 145
restrictions; provided however, that if the pledged Shares are
held through a Clearance System, (a) recordation of legal
Page 8 of 12
March 15, 2002
title in the name of such Clearance System or its nominee, and (b)
liens on the pledged Shares of the type that are routinely imposed
on all securities in such Clearance System, shall be permitted.
(g) Each party represents that it is an "eligible contract
participant" (as such term is defined in Section 1(a)(12) of the
Commodity Exchange Act, as amended (the "CEA")) because one or
more of the following under (x) or (y) is true:
(x) such party is an individual who:
(A) has total assets in excess of U.S. $10,000,000; or
(B) has total assets in excess of U.S. $5,000,000 and has
entered into this Transaction in order to manage the
risk associated with an asset owned or liability
incurred, or reasonably likely to be owned or
incurred, by such party;
or,
(y) It is a corporation, partnership, proprietorship,
organization, trust or other entity and:
(A) It has total assets in excess of U.S. $10,000,000; or
(B) The obligations of it hereunder are guaranteed, or
otherwise supported by a letter of credit or
keepwell, support or other agreement, by an entity of
the type described in Section 1a(12)(A)(i) through
(iv), 1a(12)(A)(v)(I), 1a(12)(A)(vii) or 1a(12)(C) of
the CEA; or
(C) it has a net worth in excess of U.S. $1,000,000 and
has entered into this Transaction in connection with
the conduct of its business or to manage the risk
associated with an asset or liability owned or
incurred or reasonably likely to be owned or incurred
by it in the conduct of its business.
(h) Counterparty acknowledges and agrees that it is not relying, and
has not relied, upon BofA or any affiliate of BofA, with respect to
the legal, accounting, tax or other implications of this
Transaction and that it has conducted its own analyses of the
legal, accounting, tax and other implications hereof. The
Counterparty further acknowledges and agrees that neither BofA nor
any affiliate of BofA has acted as advisor in any capacity in
connection with this Transaction. The Counterparty is entering into
this Transaction with a full understanding of all the terms and
risks hereof (economic and otherwise), has adequate expertise in
financial matters to evaluate those terms and risks and is capable
of assuming (financially and otherwise) those risks.
(i) Collateral Provisions. As collateral security for any amounts due
---------------------
to BofA with respect to this Transaction or pursuant to any
document executed in connection therewith, the Counterparty granted
to BofA a security interest in 1,000,000 Shares (such number of
Shares, the "Collateral") pursuant to the Pledge Agreement dated
March 15, 2002 by and between the Counterparty and BofA (the
"Pledge Agreement"). The Pledge Agreement, any other pledge or
security agreement executed by Counterparty in replacement or
substitution of the Pledge Agreement, whether or not expressly
referencing the Transaction, and any amendment, modification or
replacement of or substitution therefor, shall constitute a Credit
Support Document under the Agreement.
(j) Certain Authorized Transfers. BofA may transfer or assign its
-------------------------------
rights and obligations in whole or in part to (i) any of its
affiliates or (ii) any entities sponsored or organized by, or on
behalf of or for the benefit of, BofA.
Page 9 of 12
March 15, 2002
(k) Additional Termination Events
-----------------------------
It shall be an Additional Termination Event with respect to
Counterparty only and, with respect to such Additional Termination
Event, Counterparty shall be the Affected Party and all
Transactions shall be Affected Transactions:
(i) Breach of Agreement, Dissolution of Partnership.
(A) the General Partner materially breaches any provision
of the Amended and Restated Agreement of Limited
Partnership of Welsh, Carson, Xxxxxxxx & Xxxxx VIII,
L.P. (the "Partnership Agreement");
(B) any event shall occur pursuant to Section 7.01 or
Section 7.02 of the Partnership Agreement; or
(C) any occurrence or circumstance which in the reasonable
opinion of BofA would prevent the Counterparty from
performing any of its obligations under this
Transaction.
(ii) Any "Hedging Disruption Event", which term shall mean with
respect to BofA any inability (which shall include an increase in
costs) due to market illiquidity, illegality (as defined in the
Agreement, but with respect to the Transaction hedge), or lack of
availability of hedging transaction market participants or
otherwise, to establish, re-establish or maintain any hedging
transaction(s) necessary in the normal course of BofA's business
of hedging the price and market risk of entering into and
performing under the Transaction; provided, however, that, solely
with respect to any such increase in costs, no Hedging Disruption
Event shall be deemed to have occurred if Counterparty agrees to
such adjustments to the terms of the Transaction as the
Calculation Agent, in its sole discretion, deems necessary to
compensate BofA for such increase in costs.
(l) The "Cross Default" provisions of Section 5(a)(vi) of the
Agreement will apply to the Counterparty and, and for such purpose
"Specified Indebtedness" will have the meaning specified in
Section 14, and the "Threshold Amount" in relation to the
Counterparty shall be zero.
(m) For purposes of the Agreement, "Specified Transaction" shall also
include any transaction with respect to the forward sale or
delivery of any security.
(n) Designation by BofA. Notwithstanding any other provision in this
-------------------
Confirmation to the contrary requiring or allowing BofA to
purchase, sell, receive or deliver any shares or other securities
to or from the Counterparty, BofA may designate any of its
affiliates to purchase, sell, receive or deliver such shares or
other securities and otherwise to perform BofA obligations in
respect of this Transaction and any such designee may assume such
obligations. BofA shall be discharged of its obligations to the
Counterparty to the extent of any such performance.
(o) Set-off. In addition to any rights of set-off as specified in any
-------
Schedule to the Agreement now or hereafter executed between the
parties, BofA shall have rights of set-off as specified in the
applicable Pledge Agreement, any other Credit Support Document, or
as otherwise provided by contract or law.
Page 10 of 12
March 15, 2002
(p) Additional Provisions.
----------------------
(i) Section 9.1(e) of the Equity Definitions shall be amended to
add the new following subsection (vii) "(vii) any tender offer
with respect to the Shares which is not a Merger Event as defined
in Section 9.2 of the Equity Definitions and is deemed to be
material in the determination of the Calculation Agent".
(ii) Section 9.1(e)(vi) of the Equity Definitions is hereby
amended by deleting the words "other similar" between "any" and
"event"; deleting the words "diluting or concentrative" and
replacing them with "material"; and adding the following words at
the end of the sentence "or the Transaction".
(iii) For purposes of Section 9.1(e)(iii) of the Equity
Definitions, any dividend on the Shares for which the ex-dividend
date occurs during the period from and excluding the Trade Date,
to and including the Maturity Date, shall be deemed to be an
extraordinary dividend.
(q) Indemnity. In the event that BofA or any of its affiliates
----------
becomes involved in any capacity in any action, proceeding or
investigation brought by or against any person in connection with
any tax, regulatory or accounting position taken by Counterparty
in connection with this Agreement, or the Pledge Agreement, the
Counterparty shall reimburse BofA or such affiliate for its
reasonable legal and other out-of-pocket expenses (including the
cost of any investigation and preparation) incurred in connection
therewith within 30 days of receipt of notice of such expenses,
and shall indemnify and hold BofA or such affiliate harmless on an
after-tax basis against any losses, claims, damages or liabilities
to which BofA or such affiliate may become subject in connection
with any such action, proceeding or investigation; provided,
however, that notwithstanding anything in this sentence to the
contrary, Counterparty shall have no liability under this
paragraph (q) with respect to any regulatory violation of the
Securities Act in connection with BofA's purchase of the Shares
from Counterparty as a private placement not registered under the
Securities Act. The reimbursement and indemnity obligations of the
Counterparty under this paragraph shall be in addition to any
liability that the Counterparty may otherwise have, shall extend
upon the same terms and conditions to the partners, directors,
officers, agents, employees and controlling persons (if any), as
the case may be, of BofA and its affiliates and shall be binding
upon and inure to the benefit of any successors, assigns, heirs
and personal representatives of the Counterparty, BofA, any such
affiliate and any such person. The Counterparty also agrees that
neither BofA nor any of such affiliates, partners, directors,
officers, agents, employees or controlling persons shall have any
liability to the Counterparty for or in connection with any matter
referred to in this Agreement or the Pledge Agreement except to
the extent that any losses, claims, damages, liabilities or
expenses incurred by the Counterparty result from the gross
negligence or bad faith of BofA or a breach by BofA of any of its
covenants or obligations hereunder. The foregoing provisions shall
survive any termination or completion of this Agreement.
(r) Counterparty consents to BofA or any of its affiliates or agents
communicating and conferring with the Issuer, its attorneys, and
its transfer agent in connection with the transfer of the Shares
to BofA pursuant to the terms of this Transaction.
(s) If, at any time after the Settlement Date, BofA shall consider or
be advised that any assignments, assurances or any other similar
actions or things are necessary or desirable to vest, perfect or
confirm of record or otherwise in BofA its rights, title or
interest in, to or under any of the Shares, Counterparty agrees to
take such actions as may be reasonably necessary or desirable to
vest in BofA and to perfect or confirm in respect of BofA any and
all right, title and interest, in, to and under such Shares. The
representations and warranties of the parties hereunder and the
obligations of the parties to this Agreement under this Section
7(s) hereof shall survive termination of this Agreement and shall
survive the Settlement Date.
Page 11 of 12
March 15, 2002
(t) BofA represents and warrants to and for the benefit of
Counterparty that it is purchasing the Shares for its own account,
not with a view towards resale or distribution in violation of the
Securities Act.
Please confirm your acceptance and agreement with the foregoing by
immediately executing the copy of this Confirmation enclosed for
that purpose and returning it to Bank of America, N.A. by facsimile
at (000) 000-0000 (Attn: Xxxxx Xxxxxx).
Very truly yours,
Bank of America, N.A.
By:
---------------------------
Authorized Signatory
Name:
Accepted and confirmed
as of the Trade Date:
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P.
By WCAS VIII Associates LLC, General Partner
By:
---------------------------
Managing Member
Name:
Page 12 of 12
March 15, 2002
