THAT IT IS AN "ELIGIBLE CONTRACT PARTICIPANT", AS DEFINED IN
THE U.S. COMMODITY EXCHANGE ACT (AS AMENDED), AND IS ENTERING INTO EACH
TRANSACTION HEREUNDER AS PRINCIPAL AND NOT FOR THE BENEFIT OF ANY THIRD PARTY;
AND
(B)
ACCREDITED INVESTOR.
EACH PARTY ACKNOWLEDGES THAT THE OFFER AND
SALE OF EACH 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 AND THE PROVISIONS OF REGULATION D THEREUNDER ("REGULATION
D").
ACCORDINGLY, EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER THAT (I) IT
HAS THE FINANCIAL ABILITY TO BEAR THE ECONOMIC RISK OF ITS INVESTMENT IN EACH
TRANSACTION AND IS ABLE TO BEAR A TOTAL LOSS OF ITS INVESTMENT, (II) IT IS AN
"ACCREDITED INVESTOR" AS THAT TERM IS DEFINED UNDER REGULATION D, (III) IT WILL
PURCHASE EACH TRANSACTION FOR INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION
OR RESALE THEREOF, AND (IV) THE DISPOSITION OF EACH TRANSACTION IS RESTRICTED
UNDER THIS MASTER CONFIRMATION AND EACH SUPPLEMENTAL CONFIRMATION, THE
SECURITIES ACT AND STATE SECURITIES LAWS.
(C)
COLLATERAL.
EACH PARTY ACKNOWLEDGES THAT NO COLLATERAL IS
REQUIRED TO BE POSTED IN CONNECTION WITH ANY TRANSACTION.
(D)
SHARE SETTLEMENT.
FOR THE AVOIDANCE OF DOUBT, EACH PARTY
ACKNOWLEDGES THAT COUNTERPARTY SHALL HAVE THE RIGHT, IN ITS SOLE DISCRETION, TO
MAKE ANY PAYMENT REQUIRED TO BE MADE BY IT, EITHER PURSUANT TO A COUNTERPARTY
ADDITIONAL PAYMENT AMOUNT OR PURSUANT TO SECTION 6(E) OF THE AGREEMENT OR
SECTIONS 12.7 OR 12.9 OF THE EQUITY DEFINITIONS (EXCEPT WITH RESPECT TO ANY
PORTION OF THE CONSIDERATION FOR THE SHARES CONSISTING OF CASH IN THE EVENT OF A
MERGER EVENT OR TENDER OFFER) FOLLOWING THE OCCURRENCE OF AN EARLY TERMINATION
DATE OR EXTRAORDINARY EVENT, BY ELECTING TO SHARE SETTLE THE TRANSACTIONS UNDER
THIS MASTER CONFIRMATION.
IN NO EVENT SHALL THE NUMBER OF SHARES REQUIRED TO BE
DELIVERED BY COUNTERPARTY IN CONNECTION WITH A SHARE SETTLEMENT EXCEED THE
NUMBER OF RESERVED SHARES (AS DEFINED IN THE SUPPLEMENTAL CONFIRMATION).
4.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF
COUNTERPARTY.
IN ADDITION TO THE REPRESENTATIONS, WARRANTIES AND COVENANTS IN
THE AGREEMENT AND THOSE CONTAINED HEREIN, AS OF (I) THE DATE HEREOF, (II) THE
TRADE DATE AND (III) TO THE EXTENT INDICATED BELOW, EACH DAY DURING THE HEDGE
PERIOD AND CALCULATION PERIOD, COUNTERPARTY REPRESENTS, WARRANTS AND COVENANTS
TO GS&CO. THAT:
(a)
the purchase or writing of each Transaction will not violate
Rule 13e-1 or Rule 13e-4 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b)
other than any information to be disseminated contemporaneously
with the announcement of the Transaction, it is not entering into any
Transaction on the basis of, and is not aware of, any material non-public
information with respect to the Shares or in anticipation of, in connection
with, or to facilitate, a distribution of its securities, a self tender offer or
a third-party tender offer;
(c)
it is not entering into any Transaction to create, and will not
engage in any other securities