BOTH, AS THE CASE MAY BE, FOR SUCH NUMBER OF SCHEDULED
TRADING DAYS AS IS SPECIFIED IN THE NOTICE.
THE NOTICE SHALL NOT SPECIFY, AND
GS&CO. SHALL NOT OTHERWISE COMMUNICATE TO COUNTERPARTY, THE REASON FOR GS&CO.'S
ELECTION TO SUSPEND THE HEDGE PERIOD OR THE CALCULATION PERIOD, OR BOTH, AS THE
CASE MAY BE.
THE HEDGE PERIOD OR THE CALCULATION PERIOD, OR BOTH, AS THE CASE
MAY BE, SHALL BE SUSPENDED AND THE TERMINATION DATE SHALL BE EXTENDED FOR EACH
SCHEDULED TRADING DAY OCCURRING DURING ANY SUCH SUSPENSION.
(C)
IN THE EVENT THAT THE CALCULATION PERIOD OR THE HEDGE PERIOD, AS
THE CASE MAY BE, IS SUSPENDED PURSUANT TO SECTION 5(A) OR 5(B) ABOVE DURING THE
REGULAR TRADING SESSION ON THE EXCHANGE, SUCH SUSPENSION SHALL BE
9
DEEMED TO BE AN ADDITIONAL MARKET DISRUPTION EVENT, AND THE SECOND AND THIRD
PARAGRAPHS UNDER "MARKET DISRUPTION EVENT" SHALL APPLY.
(D)
IN THE EVENT THAT THE CALCULATION PERIOD IS EXTENDED PURSUANT TO
ANY PROVISION HEREOF (INCLUDING, WITHOUT LIMITATION, PURSUANT TO SECTION 9(B)
BELOW), THE CALCULATION AGENT, AFTER CONSULTATION WITH COUNTERPARTY, SHALL
ADJUST ANY RELEVANT TERMS OF THE RELATED TRANSACTION IF NECESSARY TO PRESERVE AS
NEARLY AS PRACTICABLE THE ECONOMIC TERMS OF SUCH TRANSACTION PRIOR TO SUCH
EXTENSION; PROVIDED THAT COUNTERPARTY SHALL NOT BE REQUIRED TO MAKE ANY
ADDITIONAL CASH PAYMENTS OR DELIVER ANY SHARES IN CONNECTION WITH ANY SUCH
ADJUSTMENTS.
6.
10B5-1 PLAN.
COUNTERPARTY REPRESENTS, WARRANTS AND COVENANTS TO
GS&CO. THAT FOR EACH TRANSACTION:
(A)
COUNTERPARTY IS ENTERING INTO THIS MASTER CONFIRMATION AND EACH
TRANSACTION HEREUNDER IN GOOD FAITH AND NOT AS PART OF A PLAN OR SCHEME TO EVADE
THE PROHIBITIONS OF RULE 10B5-1 UNDER THE EXCHANGE ACT ("RULE 10B5-1").
IT IS
THE INTENT OF THE PARTIES THAT EACH TRANSACTION ENTERED INTO UNDER THIS MASTER
CONFIRMATION COMPLY WITH THE REQUIREMENTS OF RULE 10B5-1(C)(1)(I)(A) AND (B) AND
EACH TRANSACTION ENTERED INTO UNDER THIS MASTER CONFIRMATION SHALL BE
INTERPRETED TO COMPLY WITH THE REQUIREMENTS OF RULE 10B5-1(C).
(B)
COUNTERPARTY WILL NOT SEEK TO CONTROL OR INFLUENCE GS&CO. TO MAKE
"PURCHASES OR SALES" (WITHIN THE MEANING OF RULE 10B5-1(C)(1)(I)(B)(3)) UNDER
ANY TRANSACTION ENTERED INTO UNDER THIS MASTER CONFIRMATION, INCLUDING, WITHOUT
LIMITATION, GS&CO.'S DECISION TO ENTER INTO ANY HEDGING TRANSACTIONS.
COUNTERPARTY REPRESENTS AND WARRANTS THAT IT HAS CONSULTED WITH ITS OWN ADVISORS
AS TO THE LEGAL ASPECTS OF ITS ADOPTION AND IMPLEMENTATION OF THIS MASTER
CONFIRMATION, EACH SUPPLEMENTAL CONFIRMATION AND EACH TRADE NOTIFICATION UNDER
RULE 10B5-1.
(c)
Counterparty acknowledges and agrees that any amendment,
modification, waiver or termination of this Master Confirmation, the relevant
Supplement Confirmation or Trade Notification must be effected in accordance
with the requirements for the amendment or termination of a "plan" as defined in
Rule 10b5-1(c).
Without limiting the generality of the foregoing, any such
amendment, modification, waiver or termination shall be made in good faith and
not as part of a plan or scheme to evade the prohibitions of Rule 10b-5.
7.
COUNTERPARTY PURCHASES.
COUNTERPARTY (OR ANY "AFFILIATED PURCHASER" AS DEFINED IN RULE 10B-18) SHALL
NOT, WITHOUT THE PRIOR WRITTEN CONSENT