SECURITIES ACT AND STATE SECURITIES LAWS.
4.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF GS&CO.
GS&Co. hereby represents, warrants and covenants to Counterparty that:
(A)
DURING ALL RELEVANT TIMES BEGINNING ON THE THIRD SUCCEEDING
SCHEDULED TRADING DAY FOLLOWING THE TRADE DATE THROUGH AND INCLUDING THE
VALUATION DATE, TO THE EXTENT THAT IT PURCHASES ANY SHARES IN CONNECTION WITH
ITS HEDGE POSITIONS, IT SHALL USE GOOD FAITH, COMMERCIALLY REASONABLE EFFORTS TO
COMPLY WITH THE PROVISIONS OF RULE 10B-18(B)(2), (3) AND (4) OF THE EXCHANGE ACT
AS IF THOSE SECTIONS APPLIED TO GS&CO., TAKING INTO ACCOUNT ANY APPLICABLE
SECURITIES AND EXCHANGE COMMISSION NO-ACTION LETTERS AS APPROPRIATE AND SUBJECT
TO ANY DELAYS BETWEEN THE EXECUTION AND REPORTING OF A TRADE OF THE SHARES ON
THE EXCHANGE AND OTHER CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL; AND
(B)
IT SHALL PURCHASE AN AMOUNT OF SHARES NO GREATER THAN THE DAILY
REFERENCE SHARES (AS SPECIFIED IN THE RELATED SUPPLEMENTAL CONFIRMATION) ON EACH
EXCHANGE BUSINESS DAY DURING THE VALUATION PERIOD.
5.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF
COUNTERPARTY.
As of (i) the date hereof and (ii) the Trade Date, 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");
8
(B)
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)
COUNTERPARTY IS IN COMPLIANCE WITH ITS REPORTING OBLIGATIONS UNDER
THE EXCHANGE ACT AND ITS MOST RECENT ANNUAL REPORT ON FORM 10-K, TOGETHER WITH
ALL REPORTS SUBSEQUENTLY FILED BY IT PURSUANT TO THE EXCHANGE ACT, TAKEN
TOGETHER AND AS AMENDED AND SUPPLEMENTED TO THE DATE OF THIS REPRESENTATION, DO
NOT, AS OF THEIR RESPECTIVE FILING DATES, CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT ANY MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES IN
WHICH THEY WERE MADE, NOT MISLEADING;
(D)
WITH RESPECT TO THE FIRST TRANSACTION UNDER THIS MASTER
CONFIRMATION, THE COUNTERPARTY'S BOARD OF DIRECTORS HAS APPROVED THE TRANSACTION
AND COUNTERPARTY SHALL DISCLOSE SUCH TRANSACTION PROGRAM TO THE PUBLIC ON OR
PRIOR TO THE MORNING AFTER THE TRADE DATE AND WITH RESPECT TO OTHER
TRANSACTIONS, SUCH TRANSACTIONS ARE BEING ENTERED INTO PURSUANT TO PUBLICLY
DISCLOSED SHARE BUY-BACK PROGRAMS AND COUNTERPARTY'S BOARD OF DIRECTORS HAS
APPROVED SUCH PROGRAMS;
(E)
NOTWITHSTANDING THE GENERALITY OF SECTION 13.1 OF THE EQUITY
DEFINITIONS, GS&CO. IS NOT MAKING ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO THE TREATMENT OF ANY TRANSACTION UNDER FASB STATEMENTS 149 OR 150, EITF 00-19
(OR ANY SUCCESSOR ISSUE STATEMENTS) OR UNDER FASB'S LIABILITIES & EQUITY
PROJECT;
(F)
IT WILL NOT TAKE ANY ACTION OR REFRAIN FROM TAKING ANY ACTION
THAT WOULD LIMIT OR IN ANY WAY ADVERSELY AFFECT GS&CO.'S RIGHTS