Exhibit 10.1
EXECUTION COPY
Goldman Sachs & Co. | 85 Broad Street | New
York, New York 10004 | Tel: 212 902 1000
Opening Transaction
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To:
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Louisiana-Pacific Corporation
414 Union Street
Suite 2000
Nashville, TN 37219
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A/C:
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[Insert Account Number]
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From:
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Goldman, Sachs & Co.
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Re:
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Accelerated Stock Buyback
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Ref. No:
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[Insert Reference Number]
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Date:
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August 24, 2005
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This master confirmation
(“Master Confirmation”), dated as of August 24, 2005,
is intended to supplement the terms and provisions of certain
Transactions (each, a “Transaction”) entered into from
time to time between Goldman, Sachs & Co.
(“GS&Co.”) and Louisiana-Pacific Corporation
(“Counterparty”). This Master Confirmation, taken
alone, is neither a commitment by either party to enter into any
Transaction nor evidence of a Transaction. The terms of any
particular Transaction shall be set forth in a Supplemental
Confirmation in the form of Schedule A hereto and which references
this Master Confirmation, in which event the terms and provisions
of this Master Confirmation shall be deemed to be incorporated into
and made a part of each such Supplemental Confirmation. This
Master Confirmation and each Supplemental Confirmation together
shall constitute a “Confirmation” as referred to in the
Agreement specified below.
The definitions and provisions
contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the
International Swaps and Derivatives Association, Inc., are
incorporated into this Master Confirmation. This Master
Confirmation and each Supplemental Confirmation evidence a complete
binding agreement between Counterparty and GS&Co. as to the
terms of each Transaction to which this Master Confirmation and the
related Supplemental Confirmation relates.
All provisions contained in or
incorporated by reference in the form of the 1992 ISDA Master
Agreement (Multicurrency — Cross Border) (the
“Agreement”) will govern this Master Confirmation and
each Supplemental Confirmation except as expressly modified
below. This Master Confirmation and each Supplemental
Confirmation, together with all other documents referring to the
Agreement confirming Transactions entered into between GS&Co.
and Counterparty (notwithstanding anything to the contrary in a
Supplemental Confirmation), shall supplement, form a part of, and
be subject to the Agreement as if GS&Co. and Counterparty had
executed the Agreement (but without any Schedule except for
(i) the election of Second Method and Loss, the law of the
State of New York as the governing law and US Dollars
(“USD”) as the Termination Currency, (ii) the
election that subparagraph (ii) of Section 2(c) shall not
apply to Transactions, and (iii) the election that the
“Cross Default” provisions of Section 5(a)(vi)
shall apply to Counterparty with a “Threshold Amount”
of USD 50 million).
All provisions contained in the
Agreement shall govern this Master Confirmation and the related
Supplemental Confirmation relating to a Transaction except as
expressly modified below or in the related Supplemental
Confirmation. With respect to any relevant Transaction, the
Agreement, this Master Confirmation and the related Supplemental
Confirmation shall represent the entire agreement and understanding
of the parties
with respect to the subject matter and terms of
such Transaction and shall supersede all prior or contemporaneous
written or oral communications with respect thereto.
If, in relation to any Transaction
to which this Master Confirmation and related Supplemental
Confirmation relate, there is any inconsistency between the
Agreement, this Master Confirmation, any Supplemental Confirmation
and the Equity Definitions that are incorporated into any
Supplemental Confirmation, the following will prevail for purposes
of such Transaction in the order of precedence indicated:
(i) such Supplemental Confirmation; (ii) this Master
Confirmation; (iii) the Agreement; and (iv) the Equity
Definitions.
1.
Each Transaction
constitutes a Share Forward Transaction for the purposes of the
Equity Definitions. Set forth below are the terms and
conditions which, together with the terms and conditions set forth
in each Supplemental Confirmation (in respect of each relevant
Transaction), shall govern each such Transaction.
General Terms:
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Trade Date:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Buyer:
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Counterparty
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Seller:
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GS&Co.
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Shares:
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Shares of Common Stock, $1 par value, of
Counterparty (Ticker: LPX)
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Forward Price:
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The average of the New York 10b-18 Volume
Weighted Average Price per share of the Shares for the regular
trading session (including any extensions thereof) of the Exchange
on the related Exchange Business Day in the Calculation Period
(without regard to pre-open or after hours trading outside of any
regular trading session for any such Exchange Business Day), as
published by Bloomberg at 4:15 p.m. New York time on each Exchange
Business Day during the Calculation Period.
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Calculation Period:
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Each Exchange Business Day from and including
the Exchange Business Day following the Hedge Completion Date to
and including the Termination Date (as adjusted in accordance with
Section 5 herein and pursuant to Market Disruption Event
below).
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Termination Date:
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For each Transaction, as set forth in the
Supplemental Confirmation (as the same may be postponed in
accordance with the provisions of “Calculation Period”
and Section 5 herein).
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Hedge Period:
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Each Exchange Business Day from and including
the Trade Date to and including the Hedge Completion
Date.
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Hedge Completion Date:
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The Exchange Business Day on which GS&Co.
finishes establishing its Hedge Positions, as determined by
GS&Co., as set forth in the Supplemental Confirmation for each
Transaction.
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Hedge Period Reference Price:
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The average of the New York 10b-18 Volume
Weighted Average Price per share of the Shares for the regular
trading session (including any extensions thereof) of the Exchange
on the related Exchange Business Day in the Hedge Period (without
regard to pre-open or after hours trading outside of any regular
trading session for any such Exchange Business Day), as published
by Bloomberg at 4:15 p.m. New York time on each Exchange Business
Day during the Hedge Period.
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2
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Market Disruption Event:
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The definition of “Market Disruption
Event” in Section 6.3(a) of the Equity Definitions is hereby
amended by inserting the words “at any time on any Scheduled
Trading Day during the Hedge Period or Calculation Period or”
after the word “material,” in the third line
thereof.
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Notwithstanding anything to the contrary in the
Equity Definitions, to the extent that any Scheduled Trading Day in
the Calculation Period is a Disrupted Day, the Termination Date
shall be postponed and the Calculation Agent (after consultation
with Counterparty) shall extend the Calculation Period and make
reasonable adjustments to the weighting of each Rule 10b-18
eligible transaction in the Shares on the relevant Exchange
Business Days during the Calculation Period for purposes of
determining the Forward Price, with such adjustments based on,
among other factors, the duration of any Market Disruption Event
and the volume, historical trading patterns and price of the
Shares.
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Notwithstanding anything to the contrary in the
Equity Definitions, to the extent that any Scheduled Trading Day in
the Hedge Period is a Disrupted Day, the Calculation Agent (after
consultation with Counterparty) shall make reasonable adjustments
to the weighting of each Rule 10b-18 eligible transaction in the
Shares on the relevant Exchange Business Days during the Hedge
Period for purposes of determining the Hedge Period Reference
Price, with such adjustments based on, among other factors, the
duration of any Market Disruption Event and the volume, historical
trading patterns and price of the Shares.
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To the extent that there are 9 consecutive
Disrupted Days during the Calculation Period or Hedge Period, then
notwithstanding the occurrence of a Disrupted Day, the Calculation
Agent (after consultation with Counterparty) shall have the option
to either determine the weighting of each Rule 10b-18 eligible
transaction in the Shares on the relevant Exchange Business Days
during the Calculation Period or Hedge Period, as applicable, using
its good faith estimate of the value for the Share on such 9
th consecutive day or in the case of a Calculation
Period elect to further extend the Calculation Period as it deems
necessary.
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Exchange:
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NYSE
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Prepayment\Variable Obligation:
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Applicable
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Prepayment Amount:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Prepayment Date:
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Three (3) Exchange Business Days following the
Trade Date.
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Seller Payment Amount:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Seller Payment Date:
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Three (3) Exchange Business Days following the
Trade Date.
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Counterparty Additional
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Payment Amount:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Counterparty Additional
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Payment Date:
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Three (3) Exchange Business Days following the
Trade Date.
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3
Settlement Terms:
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Physical Settlement:
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Applicable
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Number of Shares
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to be Delivered:
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A number of Shares equal to (a) the Prepayment
Amount divided by (b) the Forward Price; provided that the Number
of Shares to be Delivered will be no less than the Minimum Shares
and no greater than the Maximum Shares. The Number of Shares to be
Delivered on the Settlement Date shall be reduced, but not below
zero, by any Shares delivered pursuant to the Initial Share
Delivery and the Minimum Share Delivery below.
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Settlement Date:
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Three (3) Exchange Business Days following the
Termination Date.
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Settlement Currency:
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USD (all amounts shall be converted to the
Settlement Currency in good faith and in a commercially reasonable
manner by the Calculation Agent).
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Initial Shares:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Initial Share Delivery:
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GS&Co. shall deliver a number of shares
equal to the Initial Shares to Counterparty on the Initial Share
Delivery Date in accordance with Section 9.4 of the Equity
Definitions, with the Initial Share Delivery Date deemed to be a
“Settlement Date” for purposes of such Section
9.4.
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Initial Share Delivery Date:
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Three (3) Exchange Business Days following the
Trade Date.
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Minimum Shares:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Minimum Share Delivery:
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GS&Co. shall deliver a number of shares
equal to the excess, if any, of the Minimum Shares over the Initial
Shares on the Minimum Share Delivery Date in accordance with
Section 9.4 of the Equity Definitions, with the Minimum Share
Delivery Date deemed to be a “Settlement Date” for
purposes of such Section 9.4.
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Minimum Share Delivery Date:
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Three (3) Exchange Business Days following the
Hedge Completion Date.
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Maximum Shares:
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For each Transaction, as set forth in the
Supplemental Confirmation.
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Method of Adjustment:
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Calculation Agent Adjustment
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Extraordinary Events:
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Tender Offer:
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Applicable
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Consequences of
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Merger Events and
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Tender Offers:
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(a)
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Share-for-Share:
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Modified Calculation Agent Adjustment
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(b)
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Share-for-Other:
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Cancellation and Payment
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(c)
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Share-for-Combined:
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Component Adjustment
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4
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Determining Party:
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GS&Co.
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Nationalization,
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Insolvency or Delisting:
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Negotiated Close-out; provided that in addition
to the provisions of Section 12.6(a)(iii) of the Equity
Definitions, it shall also constitute a Delisting if the Shares are
not immediately re-listed, re-traded or re-quoted on any of the New
York Stock Exchange, the American Stock Exchange or The Nasdaq
National Market (or their respective successors); if the Shares are
immediately re-listed, re-traded or re-quoted on any such exchange
or quotation system, such exchange or quotation system shall be
deemed to be the Exchange.
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Additional Disruption Events:
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(a)
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Change in Law:
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Applicable
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(b)
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Failure to Deliver:
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Not Applicable
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(c)
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Insolvency Filing:
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Applicable
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(d)
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Loss of Stock Borrow:
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Applicable; furthermore Sections 12.9(a)(vii)
and 12.9(b)(iv) of the Equity Definitions are amended by deleting
the words “at a rate equal to or less than the Maximum Stock
Loan Rate” and replacing them with “at a rate of return
equal to or greater than zero”.
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Hedging Party:
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GS&Co.
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Determining Party:
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GS&Co.
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Non-Reliance/Agreements and
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Acknowledgements Regarding
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Hedging Activities/Additional
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Acknowledgements:
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Applicable
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Transfer:
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Notwithstanding anything to the contrary in the
Agreement, GS&Co. may assign, transfer and set over all rights,
title and interest, powers, privileges and remedies of GS&Co.
under any Transaction, in whole or in part, to an affiliate of
GS&Co. that is guaranteed by The Goldman Sachs Group, Inc.
without the consent of Counterparty.
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Counterparty’s Contact Details
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for Purpose of Giving Notice:
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To be provided by Counterparty
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GS&Co.’s Contact Details
for
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Purpose of Giving Notice:
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Telephone No.:
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(212) 902-8996
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Facsimile No.:
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(212) 902-0112
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Attention: Equity Operations: Options and
Derivatives
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GS&Co. Payment Instructions:
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JP Morgan Chase Bank , N.A.
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For A/C Goldman, Sachs & Co.
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A/C #930-1-011483
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ABA: 021-000021
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2.
Calculation Agent.
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GS&Co.
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5
3.
Additional
Mutual Representations, Warranties and Covenants
. In
addition to the representations and warranties in the
Agreement:
(a)
Eligible
Contract Participant . Each party represents
and warrants to the other party that it is an “eligible
contract participant”, as defined in the U.S. Commodity
Exchange Act (as amended), and is entering into each Transaction
hereunder as principal and not for the benefit of any third party;
and
(b)
Accredited
Investor . Each party
acknowledges that the offer and sale of each Transaction to it is
intended to be exempt from registration under the
Securitie
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