ANYTHING TO THE CONTRARY IN THIS MASTER
CONFIRMATION OR ANY SUPPLEMENTAL CONFIRMATION HEREUNDER, IN THE EVENT THAT AN
EXTRAORDINARY EVENT UNDER ARTICLE 12 OF THE EQUITY DEFINITIONS OCCURS OR AN
EARLY TERMINATION DATE OCCURS OR IS DESIGNATED WITH RESPECT TO ANY TRANSACTION
(EACH AN "AFFECTED TRANSACTION"), THEN:
(A)
GS&CO.AND COUNTERPARTY MAY AGREE TO HAVE COUNTERPARTY DELIVER THE
NUMBER OF EARLY SETTLEMENT SHARES TO GS&CO. ON THE DATE THAT NOTICE DESIGNATING
SUCH EVENT IS EFFECTIVE AND EITHER GS&CO. SHALL PAY TO COUNTERPARTY THE SPECIAL
TERMINATION AMOUNT, IF POSITIVE, OR COUNTERPARTY SHALL PAY TO GS&CO. THE
ABSOLUTE VALUE OF THE SPECIAL TERMINATION AMOUNT, IF NEGATIVE.
TO THE EXTENT
THAT COUNTERPARTY ELECTS TO DELIVER SHARES TO GS&CO. ACCOMPANIED BY AN EFFECTIVE
REGISTRATION STATEMENT (SATISFACTORY TO GS&CO. IN ITS SOLE DISCRETION) COVERING
SUCH SHARES, COUNTERPARTY MUST BE IN COMPLIANCE WITH THE CONDITIONS SPECIFIED IN
(III) THOUGH (IX) IN ANNEX B HERETO AT THE TIME OF SUCH DELIVERY.
IF
COUNTERPARTY ELECTS TO DELIVER UNREGISTERED SHARES (AS DEFINED IN ANNEX B) TO
GS&CO., COUNTERPARTY AND GS&CO. WILL NEGOTIATE IN GOOD FAITH ON ACCEPTABLE
PROCEDURES AND DOCUMENTATION RELATING TO THE SALE OF SUCH UNREGISTERED SHARES.
COUNTERPARTY AND GS&CO. AGREE THAT THE PAYMENT OF THE SPECIAL TERMINATION AMOUNT
AND THE DELIVERY OF THE NUMBER OF EARLY SETTLEMENT SHARES SATISFIES IN FULL ANY
OBLIGATION OF A PARTY TO MAKE ANY PAYMENTS PURSUANT TO SECTION 6(E) OF THE
AGREEMENT OR ARTICLE 12 OF THE EQUITY DEFINITIONS, AS THE CASE MAY BE.
"NUMBER OF EARLY SETTLEMENT SHARES" MEANS WITH RESPECT TO EACH AFFECTED
TRANSACTION UNDER THIS MASTER CONFIRMATION AND FOR ANY DATE OF DETERMINATION, A
NUMBER OF SHARES EQUAL TO (I) THE RELATED NUMBER OF SHARES MINUS (II) THE
PRODUCT OF (Y) THE RELATED NUMBER OF SHARES MULTIPLIED BY THE QUOTIENT OF (A)
THE NUMBER OF EXCHANGE BUSINESS DAYS THAT HAVE ACTUALLY OCCURRED IN THE
VALUATION PERIOD PRIOR TO SUCH DATE OF DETERMINATION DIVIDED BY (B) THE NUMBER
OF SCHEDULED TRADING DAYS IN THE VALUATION PERIOD AS OF THE TRADE DATE.
12.
"SPECIAL TERMINATION AMOUNT" MEANS THE SUM OF (A) THE PRODUCT OF
(I) THE NUMBER OF EARLY SETTLEMENT SHARES MULTIPLIED BY (II) A PER SHARE PRICE
(THE "EARLY TERMINATION PRICE") DETERMINED BY GS&CO. IN A GOOD FAITH AND
COMMERCIALLY REASONABLE MANNER BASED ON RELEVANT MARKET INDICIA, INCLUDING
GS&CO.'S FUNDING COSTS ASSOCIATED WITH EARLY SETTLEMENT SHARES AND COSTS
INCURRED OR ESTIMATED TO BE INCURRED BY GS&CO. IN CONNECTION WITH THE PURCHASE
AND SALE OF SHARES IN ORDER TO CLOSE OUT GS&CO.'S OR ANY OF ITS AFFILIATES'
HEDGE POSITIONS WITH RESPECT TO EACH AFFECTED TRANSACTION AND, IN THE EVENT THAT
COUNTERPARTY DELIVERS UNREGISTERED SHARES TO GS&CO., WHETHER GS&CO. AND
COUNTERPARTY HAVE AGREED ON ACCEPTABLE PROCEDURES AND DOCUMENTATION RELATING TO
SUCH UNREGISTERED SHARES AS DESCRIBED ABOVE AND (B) ANY AMOUNT OWING UNDER
SECTION 6(E) OF THE AGREEMENT OR PURSUANT TO ARTICLE 12 OF THE EQUITY
DEFINITIONS, AS THE CASE MAY BE, (IN EACH CASE WITHOUT DUPLICATING ANY AMOUNTS
CALCULATED UNDER CLAUSE (A) ABOVE) BY GS&CO. TO COUNTERPARTY (EXPRESSED AS A
POSITIVE NUMBER) OR