Date, the Initial Share Delivery Date, the Settlement Date or the
Second Settlement Date, if any, for any Transaction will constitute in excess of
5% of the number of Shares outstanding on such date (based on the total number
of Shares outstanding shown on Counterparty's most recent Annual Report on Form
10-K or Quarterly Report on Form 10-Q).
12.
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.
13.
LIMITATION ON SET-OFF.
(A) THE PARTIES AGREE THAT UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT OR TERMINATION EVENT WITH RESPECT TO A PARTY
WHO IS THE DEFAULTING PARTY OR AN AFFECTED PARTY ("X"), THE OTHER PARTY ("Y")
WILL HAVE THE RIGHT (BUT NOT BE OBLIGED) WITHOUT PRIOR NOTICE TO X OR ANY OTHER
PERSON TO SET-OFF OR APPLY ANY OBLIGATION OF X OWED TO Y (OR ANY AFFILIATE OF Y)
(WHETHER OR NOT MATURED OR CONTINGENT AND WHETHER OR NOT ARISING UNDER THE
AGREEMENT, AND REGARDLESS OF THE CURRENCY, PLACE OF PAYMENT OR BOOKING OFFICE OF
THE OBLIGATION) AGAINST ANY OBLIGATION OF Y (OR ANY AFFILIATE OF Y) OWED TO X
(WHETHER OR NOT MATURED OR CONTINGENT AND WHETHER OR NOT ARISING UNDER THE
AGREEMENT, AND REGARDLESS OF THE CURRENCY, PLACE OF PAYMENT OR BOOKING OFFICE OF
THE OBLIGATION).
Y WILL GIVE NOTICE TO THE OTHER PARTY OF ANY SET-OFF EFFECTED
UNDER THIS SECTION 13.
AMOUNTS (OR THE RELEVANT PORTION OF SUCH AMOUNTS) SUBJECT TO SET-OFF MAY BE
CONVERTED BY Y INTO THE TERMINATION CURRENCY AT THE RATE OF EXCHANGE AT WHICH
SUCH PARTY WOULD BE ABLE, ACTING IN A REASONABLE MANNER AND IN GOOD FAITH, TO
PURCHASE THE RELEVANT AMOUNT OF SUCH CURRENCY.
IF ANY OBLIGATION IS
UNASCERTAINED, Y MAY IN GOOD FAITH ESTIMATE THAT OBLIGATION AND SET-OFF IN
RESPECT OF THE ESTIMATE, SUBJECT TO THE RELEVANT PARTY ACCOUNTING TO THE OTHER
WHEN THE OBLIGATION IS ASCERTAINED.
NOTHING IN THIS SECTION 13 SHALL BE
EFFECTIVE TO CREATE A CHARGE OR OTHER SECURITY INTEREST.
THIS SECTION 13 SHALL
BE WITHOUT PREJUDICE AND IN ADDITION TO ANY RIGHT OF SET-OFF, COMBINATION OF
ACCOUNTS, LIEN OR OTHER RIGHT TO WHICH ANY PARTY IS AT ANY TIME OTHERWISE
ENTITLED (WHETHER BY OPERATION OF LAW, CONTRACT OR OTHERWISE).
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, GS&CO.
AGREES NOT TO SET OFF OR NET AMOUNTS DUE FROM COUNTERPARTY WITH RESPECT TO ANY
TRANSACTION AGAINST AMOUNTS DUE FROM GS&CO. TO COUNTERPARTY WITH RESPECT TO
CONTRACTS OR INSTRUMENTS THAT ARE NOT EQUITY CONTRACTS.
"EQUITY CONTRACT" MEANS
ANY TRANSACTION OR INSTRUMENT THAT DOES NOT CONVEY RIGHTS TO GS&CO. THAT ARE
SENIOR TO CLAIMS OF COMMON STOCKHOLDERS IN THE EVENT OF COUNTERPARTY'S
BANKRUPTCY.
14.
DELIVERY OF SHARES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, GS&CO. MAY, BY PRIOR NOTICE TO COUNTERPARTY, SATISFY ITS OBLIGATION TO
DELIVER ANY SHARES OR OTHER SECURITIES ON ANY DATE DUE (AN "ORIGINAL DELIVERY
DATE") BY MAKING SEPARATE DELIVERIES OF SHARES OR SUCH