THE NUMBER
B-1
OF SUCH SHARES TO BE REGISTERED ON THE BASIS OF THE AVERAGE OF THE SETTLEMENT
PRICES ON THE FIVE (5) EXCHANGE BUSINESS DAYS PRIOR TO THE DATE OF SUCH FILING,
AMENDMENT OR SUPPLEMENT, AS THE CASE MAY BE);
(II)
MAINTAIN THE EFFECTIVENESS OF THE REGISTRATION STATEMENT UNTIL GS HAS
SOLD ALL SHARES TO BE DELIVERED BY COUNTERPARTY IN SATISFACTION OF ITS NET SHARE
SETTLEMENT OBLIGATIONS;
(III)
HAVE AFFORDED GS AND ITS COUNSEL AND OTHER ADVISERS A REASONABLE
OPPORTUNITY TO CONDUCT A DUE DILIGENCE INVESTIGATION OF COUNTERPARTY CUSTOMARY
IN SCOPE FOR TRANSACTIONS IN WHICH GS ACTS AS UNDERWRITER OF EQUITY SECURITIES,
AND GS SHALL HAVE BEEN SATISFIED (WITH THE APPROVAL OF ITS COMMITMENTS COMMITTEE
IN ACCORDANCE WITH ITS CUSTOMARY REVIEW PROCESS) WITH THE RESULTS OF SUCH
INVESTIGATION;
(IV)
HAVE NEGOTIATED AND ENTERED INTO AN AGREEMENT WITH GS PROVIDING FOR SUCH
COVENANTS, CONDITIONS, REPRESENTATIONS AND WARRANTIES, UNDERWRITING DISCOUNTS,
COMMISSIONS, INDEMNITIES AND CONTRIBUTION RIGHTS AS ARE CUSTOMARY FOR GS EQUITY
UNDERWRITING AGREEMENTS, TOGETHER WITH CUSTOMARY CERTIFICATES AND OPINIONS OF
COUNSEL AND LETTERS OF INDEPENDENT AUDITORS OF COUNTERPARTY TO BE DELIVERED TO
GS COVERING THE SHARES TO BE DELIVERED BY COUNTERPARTY IN SATISFACTION OF ITS
NET SHARE SETTLEMENT OBLIGATIONS;
(V)
HAVE DELIVERED TO GS SUCH NUMBER OF PROSPECTUSES RELATING THERETO AS GS
SHALL HAVE REASONABLY REQUESTED AND SHALL PROMPTLY UPDATE AND PROVIDE GS WITH
REPLACEMENT PROSPECTUSES AS NECESSARY TO ENSURE THE PROSPECTUS DOES NOT CONTAIN
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR ANY OMISSION OF A 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;
(VI)
REIMBURSE GS FOR AN UNDERWRITING COUNSEL SELECTED BY GS (IN ITS SOLE
DISCRETION);
(VII)
HAVE TAKEN ALL STEPS NECESSARY FOR THE SHARES SOLD BY GS TO BE LISTED OR
QUOTED ON THE PRIMARY EXCHANGE OR QUOTATION SYSTEM THAT THE SHARES ARE LISTED OR
QUOTED ON;
(VIII)
HAVE PAID ALL REASONABLE AND ACTUAL OUT-OF-POCKET COSTS AND EXPENSES OF
GS AND ALL REASONABLE AND ACTUAL FEES AND EXPENSES OF GS'S OUTSIDE COUNSEL AND
OTHER INDEPENDENT EXPERTS IN CONNECTION WITH THE FOREGOING; AND
(IX)
TAKE SUCH ACTION AS IS REQUIRED TO ENSURE THAT GS'S SALE OF THE SHARES
DOES NOT VIOLATE, OR RESULT IN A VIOLATION OF, THE FEDERAL OR STATE SECURITIES
LAWS.
In the event that the Registration Statement is not declared effective by the
Securities Exchange Commission (the "SEC"), any of the conditions specified in
(ii) through (ix) above are not satisfied on or prior to the Valuation Date (or,
in the case of an election of Net Share Settlement upon the occurrence of an
Extraordinary Event or an Early Termination Date, on or prior to the first
Exchange Business Day following either the Cancellation Date or the Early
Termination Date, as the case may be) or Counterparty elects not to deliver a
Registration Statement, then Counterparty may deliver Unregistered Shares (as
defined below) to GS in accordance with the following conditions.
GS and
Counterparty shall