promulgated
thereunder) a number of Shares in excess of 5% of the number of Shares
outstanding on the Trade Date (based on the total number of Shares outstanding
shown on Counterparty's Annual Report on Form 10-K for the fiscal year ended
March 3, 2007) and (B) no delivery of Shares on any of the Prepayment Date, the
Initial Share Delivery Date, the Interim Share Delivery Date, the Settlement
Date or the Second Settlement Date, if any, for any Transaction will constitute
in excess of 5% of the number of Shares outstanding on such date (based on the
total number of Shares outstanding shown on Counterparty's most recent Annual
Report on Form 10-K or Quarterly Report on Form 10-Q).
12
11.
CREDIT SUPPORT DOCUMENTS.
THE PARTIES
HERETO ACKNOWLEDGE THAT NO TRANSACTION HEREUNDER IS SECURED BY ANY COLLATERAL
THAT WOULD OTHERWISE SECURE THE OBLIGATIONS OF COUNTERPARTY HEREIN OR PURSUANT
TO THE AGREEMENT.
12.
LIMITATION ON SET-OFF.
(A) THE PARTIES
AGREE THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT OR TERMINATION EVENT WITH
RESPECT TO A PARTY WHO IS THE DEFAULTING PARTY OR AN AFFECTED PARTY ("X"), THE
OTHER PARTY ("Y") WILL HAVE THE RIGHT (BUT NOT BE OBLIGED) WITHOUT PRIOR NOTICE
TO X OR ANY OTHER PERSON TO SET-OFF OR APPLY ANY OBLIGATION OF X OWED TO Y (OR
ANY AFFILIATE OF Y) (WHETHER OR NOT MATURED OR CONTINGENT AND WHETHER OR NOT
ARISING UNDER THE AGREEMENT, AND REGARDLESS OF THE CURRENCY, PLACE OF PAYMENT OR
BOOKING OFFICE OF THE OBLIGATION) AGAINST ANY OBLIGATION OF Y (OR ANY AFFILIATE
OF Y) OWED TO X (WHETHER OR NOT MATURED OR CONTINGENT AND WHETHER OR NOT ARISING
UNDER THE AGREEMENT, AND REGARDLESS OF THE CURRENCY, PLACE OF PAYMENT OR BOOKING
OFFICE OF THE OBLIGATION).
Y WILL GIVE NOTICE TO THE OTHER PARTY OF ANY SET-OFF
EFFECTED UNDER THIS SECTION 12.
AMOUNTS (OR THE RELEVANT PORTION OF SUCH AMOUNTS) SUBJECT TO SET-OFF MAY BE
CONVERTED BY Y INTO THE TERMINATION CURRENCY AT THE RATE OF EXCHANGE AT WHICH
SUCH PARTY WOULD BE ABLE, ACTING IN A REASONABLE MANNER AND IN GOOD FAITH, TO
PURCHASE THE RELEVANT AMOUNT OF SUCH CURRENCY.
IF ANY OBLIGATION IS
UNASCERTAINED, Y MAY IN GOOD FAITH ESTIMATE THAT OBLIGATION AND SET-OFF IN
RESPECT OF THE ESTIMATE, SUBJECT TO THE RELEVANT PARTY ACCOUNTING TO THE OTHER
WHEN THE OBLIGATION IS ASCERTAINED.
NOTHING IN THIS SECTION 12 SHALL BE
EFFECTIVE TO CREATE A CHARGE OR OTHER SECURITY INTEREST.
THIS SECTION 12 SHALL
BE WITHOUT PREJUDICE AND IN ADDITION TO ANY RIGHT OF SET-OFF, COMBINATION OF
ACCOUNTS, LIEN OR OTHER RIGHT TO WHICH ANY PARTY IS AT ANY TIME OTHERWISE
ENTITLED (WHETHER BY OPERATION OF LAW, CONTRACT OR OTHERWISE).
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THE FOREGOING, GS&CO. AGREES NOT TO SET OFF OR NET AMOUNTS DUE FROM COUNTERPARTY
WITH RESPECT TO ANY TRANSACTION AGAINST AMOUNTS DUE FROM GS&CO. TO COUNTERPARTY
WITH RESPECT TO CONTRACTS OR INSTRUMENTS THAT ARE NOT EQUITY CONTRACTS.
"EQUITY
CONTRACT" MEANS ANY TRANSACTION OR INSTRUMENT THAT DOES