THE
HEDGE PERIOD OR THE CALCULATION PERIOD IN COMPLIANCE WITH RULE 10B-18 FOLLOWING
SUCH PUBLIC ANNOUNCEMENT (PROVIDED THAT COUNTERPARTY SHALL NOT BE REQUIRED TO
MAKE ANY ADDITIONAL CASH PAYMENTS OR DELIVER ANY SHARES IN CONNECTION WITH ANY
SUCH ADJUSTMENTS) OR (II) TREAT THE OCCURRENCE OF SUCH PUBLIC ANNOUNCEMENT AS AN
ADDITIONAL TERMINATION EVENT WITH COUNTERPARTY AS THE SOLE AFFECTED PARTY; AND
(C)
COUNTERPARTY SHALL NOT MAKE, AND WILL USE COMMERCIALLY REASONABLE
EFFORTS NOT TO PERMIT TO BE MADE, A PUBLIC ANNOUNCEMENT (AS DEFINED IN RULE
165(F) UNDER THE SECURITIES ACT) OF ANY MERGER TRANSACTION OR POTENTIAL MERGER
TRANSACTION DURING THE TERM OF ANY TRANSACTION (I) TO CREATE ACTUAL OR APPARENT
TRADING ACTIVITY IN THE SHARES (OR ANY SECURITY CONVERTIBLE INTO OR EXCHANGEABLE
FOR THE SHARES) OR TO RAISE OR DEPRESS OR OTHERWISE MANIPULATE THE PRICE OF THE
SHARES (OR ANY SECURITY CONVERTIBLE INTO OR EXCHANGEABLE FOR THE SHARES) FOR THE
PURPOSE OF INDUCING THE PURCHASE OR SALE OF SHARES (OR ANY SECURITY CONVERTIBLE
INTO OR EXCHANGEABLE FOR THE SHARES) OR (II) WITH A PURPOSE OF AFFECTING THE
TERMS OF ANY TRANSACTION OR GS&CO.'S RELATED HEDGING ACTIVITIES.
"MERGER TRANSACTION" MEANS ANY MERGER, ACQUISITION OR SIMILAR TRANSACTION
INVOLVING A RECAPITALIZATION AS CONTEMPLATED BY RULE 10B-18(A)(13)(IV) UNDER THE
EXCHANGE ACT.
10.
ACKNOWLEDGMENTS.
THE PARTIES HERETO INTEND
FOR:
(A)
EACH TRANSACTION TO BE A "SECURITIES CONTRACT" AS DEFINED IN
SECTION 741(7) OF THE BANKRUPTCY CODE, A "SWAP AGREEMENT" AS DEFINED IN SECTION
101(53B) OF THE BANKRUPTCY CODE AND A "FORWARD CONTRACT" AS DEFINED IN SECTION
101(25) OF THE BANKRUPTCY CODE, AND THE PARTIES HERETO TO BE ENTITLED TO THE
PROTECTIONS AFFORDED BY, AMONG OTHER SECTIONS, SECTIONS 362(B)(6), 362(B)(17),
362(B)(27), 362(O), 546(E), 546(G), 546(J), 548(D)(2), 555, 556, 560 AND 561 OF
THE BANKRUPTCY CODE;
(B)
THE AGREEMENT TO BE A "MASTER NETTING AGREEMENT" AS DEFINED IN
SECTION 101(38A) OF THE BANKRUPTCY CODE;
(C)
A PARTY'S RIGHT TO LIQUIDATE, TERMINATE OR ACCELERATE ANY
TRANSACTION, OFFSET, NET OR NET OUT TERMINATION VALUES, PAYMENT AMOUNTS OR OTHER
TRANSFER OBLIGATIONS, AND TO EXERCISE ANY OTHER REMEDIES UPON THE OCCURRENCE OF
ANY EVENT OF DEFAULT OR TERMINATION EVENT UNDER THE AGREEMENT WITH RESPECT TO
THE OTHER PARTY OR ANY EXTRAORDINARY EVENT THAT RESULTS IN THE TERMINATION OR
CANCELLATION OF ANY TRANSACTION TO CONSTITUTE A "CONTRACTUAL RIGHT" WITHIN THE
MEANING OF SECTIONS 555, 556, 560 AND 561 OF THE BANKRUPTCY CODE; AND
(D)
ALL PAYMENTS OR DELIVERIES FOR, UNDER OR IN CONNECTION WITH EACH
TRANSACTION, ALL PAYMENTS FOR THE SHARES AND THE TRANSFER OF SUCH SHARES TO
CONSTITUTE "SETTLEMENT PAYMENTS" AND "TRANSFERS" "UNDER" OR "IN CONNECTION WITH"
EACH TRANSACTION AND THE AGREEMENT, IN EACH CASE WITHIN THE MEANING OF THE
BANKRUPTCY CODE.
11
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)
NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE AGREEMENT OR THE EQUITY DEFINITIONS, THE CALCULATION OF ANY
SETTLEMENT AMOUNTS AND UNPAID AMOUNTS,