BY COUNTERPARTY TO GS&CO. (EXPRESSED AS A NEGATIVE NUMBER).
FOR THE AVOIDANCE OF DOUBT, CLAUSE (B) ABOVE INCLUDES AMOUNTS DUE IN RESPECT OF
THE PORTION OF THE TRANSACTION EQUAL TO THE NUMBER OF SHARES MINUS THE NUMBER OF
EARLY SETTLEMENT SHARES;
(A)
GS&CO.AND COUNTERPARTY MAY AGREE TO PERMIT GS&CO. TO ACCELERATE
THE VALUATION DATE IN ITS GOOD FAITH COMMERCIALLY REASONABLE DISCRETION AND MAKE
ADJUSTMENTS TO THE NUMBER OF DAILY REFERENCE SHARES AND THE WEIGHTING OF EACH
RELEVANT PRICE FOR PURPOSES OF DETERMINING THE SETTLEMENT PRICE, WITH SUCH
ADJUSTMENTS BASED ON, AMONG OTHER THINGS, THE SHORTENED DURATION OF THE
VALUATION PERIOD AND THE NUMBER OF EARLY SETTLEMENT SHARES THEN OUTSTANDING AS
OF SUCH DATE OF DETERMINATION; OR
(B)
COUNTERPARTY MAY REQUEST THAT GS&CO. SUBMIT TO COUNTERPARTY A
PROPOSED RISK OFFER PRICE PER SHARE FOR THE NUMBER OF EARLY SETTLEMENT SHARES AS
OF THE DATE OF SUCH REQUEST.
IN THE EVENT COUNTERPARTY AGREES WITH THE TERMS OF
SUCH PROPOSED RISK OFFER PRICE, GS&CO. SHALL DETERMINE THE AMOUNT DUE UPON THE
12
OCCURRENCE OR DESIGNATION OF AN EARLY TERMINATION DATE OR UPON THE OCCURRENCE OF
AN EVENT UNDER ARTICLE 12 OF THE EQUITY DEFINITIONS IN ACCORDANCE WITH THE
METHOD SET FORTH IN "SPECIAL TERMINATION AMOUNT" HEREIN; PROVIDED THAT FOR
PURPOSES OF SUCH CALCULATION, THE "EARLY TERMINATION PRICE" SHALL EQUAL (I) THE
PROPOSED RISK OFFER PRICE ACCEPTED BY COUNTERPARTY MINUS (II) THE FORWARD PRICE.
TO THE EXTENT GS&CO. AND COUNTERPARTY ARE UNABLE TO AGREE ON SUCH METHOD OF
DETERMINATION WITH RESPECT TO AN AFFECTED TRANSACTION PURSUANT TO CLAUSES (A),
(B), OR (C) ABOVE, GS&CO. AND COUNTERPARTY AGREE TO USE SECTION 6(E) OF THE
AGREEMENT OR ARTICLE 12 OF THE EQUITY DEFINITIONS AS THE METHOD FOR CALCULATING
ANY AMOUNTS OWED BY EITHER PARTY IN THE EVENT AN EARLY TERMINATION DATE OCCURS
OR IS DESIGNATED OR AN EXTRAORDINARY EVENT UNDER ARTICLE 12 OF THE EQUITY
DEFINITIONS OCCURS.
13.
ACKNOWLEDGMENTS.
THE PARTIES HERETO INTEND FOR:
(A)
EACH TRANSACTION TO BE A "SECURITIES CONTRACT" AS DEFINED IN
SECTION 741(7) OF THE U.S. BANKRUPTCY CODE (TITLE 11 OF THE UNITED STATES CODE)
(THE "BANKRUPTCY CODE"), A "SWAP AGREEMENT" AS DEFINED IN SECTION 101(53B) OF
THE BANKRUPTCY CODE, OR A "FORWARD CONTRACT" AS DEFINED IN SECTION 101(25) OF
THE BANKRUPTCY CODE, AND THE PARTIES HERETO TO BE ENTITLED TO THE PROTECTIONS
AFFORDED BY, AMONG OTHER SECTIONS, SECTIONS 362(B)(6), 362(B)(17), 555, 556, AND
560 OF THE BANKRUPTCY CODE;
(B)
A PARTY'S RIGHT TO LIQUIDATE OR TERMINATE ANY TRANSACTION, NET OUT
OR OFFSET TERMINATION VALUES OF PAYMENT AMOUNTS, AND TO EXERCISE ANY OTHER
REMEDIES UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT UNDER THE AGREEMENT WITH
RESPECT TO THE OTHER PARTY TO CONSTITUTE A "CONTRACTUAL RIGHT" (AS DEFINED IN
THE BANKRUPTCY CODE);
(C)
ANY CASH, SECURITIES OR OTHER PROPERTY TRANSFERRED AS PERFORMANCE
ASSURANCE, CREDIT SUPPORT OR COLLATERAL WITH RESPECT TO EACH TRANSACTION TO
CONSTITUTE "MARGIN PAYMENTS" (AS DEFINED IN THE BANKRUPTCY CODE); AND
(D)
ALL PAYMENTS FOR, UNDER OR IN CONNECTION WITH EACH TRANSACTION,
ALL PAYMENTS FOR THE SHARES AND THE