Exhibit 99.2
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of May 30, 2007.
XXXXXXX XXXXX MITSUI MARINE and
DERIVATIVE PRODUCTS, X.X. XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Securities
Administrator on behalf of the
Supplemental Interest Trust with
respect to the GSAA Home Equity
Trust 2007-6 Asset-Backed
Certificates, Series 2007-6
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the provisions
of any Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in
the manner customary for the relevant obligation unless otherwise
specified in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date in
respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified in
this Agreement.
1 ISDA(R) 1992
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the
other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties make
and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified
by the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice
that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net
amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full amount
Y would have received had no such deduction or withholding been
required. However, X will not be required to pay any additional
amount to Y to the extent that it would not be required to be paid
but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
2 ISDA(R) 1992
(ii) Liability. If: --
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding in respect of which X would not be
required to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount of
such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment obligation
will, to the extent permitted by law and subject to Section 6(c), be required
to pay interest (before as well as after judgment) on the overdue amount to the
other party on demand in the same currency as such overdue amount, for the
period from (and including) the original due date for payment to (but
excluding) the date of actual payment, at the Default Rate. Such interest will
be calculated on the basis of daily compounding and the actual number of days
elapsed. If, prior to the occurrence or effective designation of an Early
Termination Date in respect o-f the relevant Transaction, a party defaults in
the performance of any obligation required to be settled by delivery, it will
compensate the other party on demand if and to the extent provided for in the
relevant Confirmation or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered
into and, in the case of the representations in Section 3(f), at all times
until the termination of this Agreement) that:-- (a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all
necessary action to authorise such execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision
of its constitutional documents, any order or judgment of any court or
other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in
lull force and effect and all conditions of any such consents have been
complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal,
valid and binding obligations, enforceable in accordance with their
respective terms (subject to applicable bankruptcy, reorganization,
insolvency, moratorium or similar laws affecting creditors' rights
generally and subject, as to enforceability, to equitable principles of
general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
3 ISDA(R) 1992
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding
at law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified
in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of
such demand), with any such form or document to be accurate and completed
in a manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable
efforts to obtain any that may become necessary in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or an Credit Support Document to which it is a party.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
4 ISDA(R) 1992
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:--
(i) Failure to Pay or Deliver. Failure by the party to make, when due,
any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) required to be made by it if such failure is not remedied on or
before the third Local Business Day after notice of such failure is given
to the party;
(ii) Breach of Agreement. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under
Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by
the party in accordance with this Agreement if such failure is not
remedied on or before the thirtieth day after notice of such failure is
given to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document
or the failing or ceasing of such Credit Support Document to be in
full force and effect for the purpose of this Agreement (in either
case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each
Transaction to which such Credit Support Document relates without
the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made
or repeated by the party or any Credit Support Provider of such party in
this Agreement or any Credit Support Document proves to have been
incorrect or misleading in any material respect when made or repeated or
deemed to have been made or repeated;
(v) Default under Specified Transaction. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving
effect to any applicable notice requirement or grace period, in making
any payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days if
there is no applicable notice requirement or grace period) or (3)
disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default,
event of default or other similar condition or event (however described)
in respect of such party, any Credit Support Provider of such party or
any applicable Specified Entity of such
5 ISDA(R) 1992
party under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) in an
aggregate amount of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments, before it
would otherwise have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in
an aggregate amount of not less than the applicable Threshold Amount
under such agreements or instruments (after giving effect to any
applicable notice requirement or grace period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such proceeding
or petition instituted or presented against it, such proceeding or
petition (A) results in a judgment of insolvency or bankruptcy or
the entry of an order for relief or the making of an order for its
winding-up or liquidation or (B) is not dismissed, discharged,
stayed or restrained in each case within 30 days of the institution
or presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all
or substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged,
stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under
the applicable laws of any jurisdiction, has an analogous effect to
any of the events specified in clauses (1) to (7) (inclusive); or
(9) takes any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (iii) below,
and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the
event is specified pursuant to (v) below:--
(i) Illegality. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it
6 ISDA(R) 1992
becomes unlawful (other than as a result of a breach by the party of
Section 4(b)) for such party (which will be the Affected Party): --
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or
such Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount
is required to be paid in respect of such Tax under Section 2(d)(i)(4)
(other than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than
by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of
a party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity
(which will be the Affected Party) where such action does not constitute
an event described in Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X
consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and such action
does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination Event"
is specified in the Schedule or any Confirmation as applying, the
occurrence of such event (and, in such event, the Affected Party or
Affected Parties shall be as specified for such Additional Termination
Event in the Schedule or such Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
7 ISDA(R) 1992
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of all outstanding Transactions. If,
however, "Automatic Early Termination" is specified in the Schedule as applying
to a party, then an Early Termination Date in respect of all outstanding
transactions will occur immediately upon the occurrence with respect to such
party of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as the
other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of the Affected Transactions
to another of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or
a Tax Event occurs and there are two Affected Parties, each party will
use all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) Right to Terminate. If: --
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect
to all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
8 ISDA(R) 1992
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence
of written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment
method, either the "First Method" or the "Second Method". If the parties fail
to designate a payment measure or payment method in the Schedule, it will be
deemed that "Market Quotation" or the "Second Method", as the case may be,
shall apply. The amount, if any, payable in respect of an Early Termination
Date and determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default: --
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a
positive number, the Non-Defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent
of the Unpaid Amounts owing to the Defaulting Party. If that amount
is a positive number,
9 ISDA(R) 1992
the Defaulting Party will pay it to the Non-defaulting Party; if it
is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is
a negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event: --
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3),
if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either case, references to the Defaulting
Party and to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be calculated
in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties: --
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate
of loss and not a penalty. Such amount is payable for the loss of bargain
and the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
10 ISDA(R) 1992
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that: --
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to
any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
the Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required
to make the payment will, to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual Currency
payable in respect of this Agreement, the party receiving the payment will
refund promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such
party. The term "rate of exchange" includes, without limitation, any premiums
and costs of exchange payable in connection with the purchase of or conversion
into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the
party to which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect of
this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
11 ISDA(R) 1992
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire Agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by
an exchange of telexes or electronic messages on an electronic messaging
system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including
by facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange
of electronic messages on an electronic messaging system, which in each
case will be sufficient for all purposes to evidence a binding supplement
to this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organisation of such party, the
obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be deemed
to be repeated by such party on each date on which a Transaction is entered
into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a
Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement
12 ISDA(R) 1992
and protection of its rights under this Agreement or any Credit Support
Document to which the Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to, costs of
collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of
New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Xxx 0000 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and on
its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly notify
the other party and within 30 days
13 ISDA(R) 1992
appoint a substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided for
notices in Section 12. Nothing in this Agreement will affect the right of
either party to serve process in any other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
14 ISDA(R) 1992
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the ease of
tax matters, by the practice of any relevant governmental revenue authority)
and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating, liquidating,
obtaining or reestablishing any hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the relevant
Early Termination Date and not made, except so as to avoid duplication, if
Section 6(e)(i)(l) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party's legal fees and out-of-pocket expenses referred to under Section 11. A
party will determine its Loss as of the relevant Early Termination Date, or, if
that is not reasonably practicable, as of the earliest date thereafter as is
reasonably practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with a respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for the
15 ISDA(R) 1992
occurrence of the relevant Early Termination Date, have been required after
that date. For this purpose, Unpaid Amounts in respect of the Terminated
Transaction or group of Terminated Transactions are to be excluded but, without
limitation, any payment or delivery that would, but for the relevant Early
Termination Date, have been required (assuming satisfaction of each applicable
condition precedent) after that Early Termination Date is to be included. The
Replacement Transaction would be subject to such determination as such party
and the Reference Market-maker may, in good faith, agree. The party making the
determination (or its agent) will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations
are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same highest
value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market
Quotation in respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a)
in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) its relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of: --
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
16 ISDA(R) 1992
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of
such party or any applicable Specified Entity of such party) and the other
party to this Agreement (or any Credit Support Provider of such other party or
any applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond
option, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation or
similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either ease) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a
rate for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under
Section 2(a)(i) which was (or would have been but for Section 2(a)(iii))
required to be settled by delivery to such party on or prior to such Early
Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market
17 ISDA(R) 1992
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of interest will
be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
XXXXXXX XXXXX MITSUI MARINE XXXXX FARGO BANK, NATIONAL
DERIVATIVE PRODUCTS, L.P. ASSOCIATION, not in its individual
capacity but solely as Securities
Administrator on behalf of the
Supplemental Interest Trust with
respect to the GSAA Home Equity Trust
2007-6 Asset-Backed Certificates,
Series 2007-6
By: GSMMDPGP, Inc.
General Partner
By: /s/ Xxxxx Rudor By: /s/ Xxxxxx Xxxx
------------------------------ ---------------
Name: Xxxxx Rudor Name: Xxxxxx Xxxx
Title: Vice President Title: Vice President
Date: May 30, 2007 Date: May 30, 2007
18 ISDA(R) 1992
EXECUTION COPY
SCHEDULE
to the
MASTER AGREEMENT
dated as of May 30, 2007
between
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
a limited partnership organized
under the laws of Delaware
("Party A"),
-------
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Securities
Administrator on behalf of the Supplemental
Interest Trust with respect to the GSAA
Home Equity Trust 2007-6 Asset-Backed
Certificates Series, 2007-6
("Party B").
-------
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
and in relation to Party B for the purpose of:
Section 5(a)(v), Not Applicable.
Section 5(a)(vi), Not Applicable.
Section 5(a)(vii), Not Applicable.
Section 5(b)(iv), Not Applicable.
(b) "Specified Transaction" shall have the meaning specified in Section
14 of this Agreement.
(c) The "Breach of Agreement" provisions of Section 5(a)(ii) will not
apply to Party A or Party B.
(d) The "Credit Support Default" provisions of Section 5(a)(iii) will
apply to Party A and will not apply to Party B.
(e) The "Misrepresentation" provisions of Section 5(a)(iv) will not apply
to Party A or Party B.
(f) The "Cross Default" provisions of Section 5(a)(vi) will not apply
to Party A or Party B.
(g) With respect to Party B only, Section 5(a)(vii)(2) is hereby
amended as follows:
"(2) becomes insolvent or is unable to pay its debts (other than
payments due to holders of its subordinate certificates) or fails
or admits in writing its inability generally to pay its debts
(other than payments to holders of its subordinate certificates) as
they become due"
(h) The "Merger without Assumption" provisions of Section 5(a)(viii)
will apply to Party A and will not apply to Party B.
(i) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will
not apply to Party A or Party B.
(j) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A or Party B.
(k) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(l) "Termination Currency" means U.S. Dollars.
(m) The "Additional Termination Event" provisions of Section 5(b)(v)
will apply as set forth in Part 5(m) hereof.
(n) The "Default under Specified Transaction" provisions of Section
5(a)(v) will not apply to Party A or Party B.
(o) The "Tax Event" provisions of Section 5(b)(ii) will apply to Party
A and will not apply to Party B.
(p) The "Tax Event Upon Merger" provisions of Section 5(b)(iii) will
apply to Party A and will not apply to Party B.
2
Part 2. Tax Representations.
(a) Payer Representations. For purposes of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, of any
Relevant Jurisdiction to make any deduction or withholding for or
on account of any Tax from any payment (other than interest under
Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it
to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant
to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the
satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a
breach of this representation where reliance is placed on subclause
(ii) and the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its legal or
commercial position.
Party A Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party A makes the following representations:
(i) It is a "U.S. payee" within the meaning of Treasury Regulation Section
1.1441-5(b).
(ii) It is a United States person within the meaning of Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
Party B Payee Representations. For the purpose of Section 3(f) of this
Agreement, Party B makes the following representation:
(i) It is a trust created under an agreement governed by New York law.
Part 3. Agreement to Deliver Documents.
For the purpose of Section 4(a), each party agrees to deliver the
following documents, as applicable:
(a) Tax forms, documents, or certificates to be delivered are:
Party A agrees to complete, execute, and deliver to Party B, United
States Internal Revenue Service Form W-9 or any successor of such form:
(i) on a date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party B; and (iii)
promptly upon learning that any such forms previously provided by Party A
has become obsolete or incorrect.
3
Party B agrees to complete, execute, and deliver to Party A, United
States Internal Revenue Service Form W-9 or any successor of such forms:
(i) on a date which is before the first scheduled payment date under this
Agreement; (ii) promptly upon reasonable demand by Party A; and (iii)
promptly upon learning that any such forms previously provided by Party B
has become obsolete or incorrect.
(b) Other documents to be delivered are:
Covered by
Party required to Form/Document/ Date by which Section 3(d)
deliver document Certificate to be delivered Representation
Party A Power of Attorney with At execution of Yes
respect to Party A this Agreement
Party A Support Agreement dated At execution of Yes
as of October 8, 1993 this Agreement
among Party A, Mitsui
Marine and Fire
Insurance Co., Ltd.
("Mitsui Marine"), and
The Xxxxxxx Xxxxx
Group, Inc.
("Goldman Group") (the
"Support Agreement")
accompanied by a
certificate of an
authorized officer of
Party A, certifying
that it is a true,
complete and correct
copy of the original
Support Agreement
Party A Guaranty dated as of At execution of Yes
December 20, 2000 this Agreement
between Mitsui Marine
and Goldman Group (the
"Guaranty"),
accompanied by a
certificate certifying
that it is a true,
complete and correct
copy of the original
Guaranty
Party A Most recently prepared As soon as Yes
annual balance sheet of possible
Party A following
request of Party
B
Party A Legal opinions with At execution of No
respect this
4
to Party A Agreement
Party B Incumbency certificate At execution of Yes
or other documents this Agreement
evidencing the
authority, incumbency
and specimen signature
of each person
executing this
Agreement, any Credit
Support Document or any
Confirmation, as the
case may be.
Party B Servicer Remittance Promptly upon Yes
Reports becoming
available
Party B Legal opinion with At execution of No
respect to Party B this Agreement
Party B An executed copy of the Within 30 days No
Master Servicing and after the date
Trust Agreement, dated of this Agreement
as of May 1, 2007, (the
"Trust Agreement")
among, inter alia, GS
Mortgage Securities
Corp., as depositor,
and Xxxxx Fargo Bank,
National Association,
as master servicer and
securities
administrator.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a): Address for
notices or communications to Party A:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Swap Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
5
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
With a copy to:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Treasury Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Electronic Messaging
System Details: None
Addresses for Notices. For the purpose of Section 12(a): Address for notices or
communications to Party B:
Address: Xxxxx Fargo Bank, National
Association
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Services Manager- GSAA
Home Equity Trust 2007-6
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not Applicable
Party B appoints as its Process Agent: Not Applicable
With a copy to:
Address: Standard & Poor's Ratings
Services, a division of McGraw
Hill, Inc.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Residential Mortgage Surveillance
6
Group
Facsimile: 212-438-2652
With a copy to:
Address: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Residential Mortgage Backed
Securities Group
Facsimile: 000-000-0000
(c) Offices; Multibranch Parties.
(i) The provisions of Section 10(a) will be applicable.
(ii) For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(d) Calculation Agent. The Calculation Agent is Party A.
(e) Credit Support Document. Details of any Credit Support Document.
(i) With respect to Party A, (A) the Support Agreement, (B) the
Guaranty and (C) any Credit Support Annex that may be entered into
in connection with any of the events described in Part 5(m)(iii) of
this Schedule.
(ii) With respect to Party B, not applicable.
Each Credit Support Document is incorporated by reference into and
constitutes part of this Agreement and each Confirmation as if set
forth in full in this Agreement or such Confirmation.
(f) Credit Support Provider.
(i) Credit Support Provider means in relation to Party A, Goldman
Group and Mitsui Marine; provided that all defaults by,
misrepresentations of, actions or failures to act by, or
circumstances or events applicable to a "Credit Support
Provider" as such term is used in this Agreement shall be
deemed in all such
7
circumstances to refer to defaults simultaneously in effect
with respect to both Goldman Group and Mitsui Marine,
misrepresentations made by both Goldman Group and Mitsui
Marine, actions or failures to act simultaneously by both
Goldman Group and Mitsui Marine, and circumstances or events
simultaneously applicable to both Goldman Group and Mitsui
Marine.
(ii) Credit Support Provider means in relation to Party B, Not
Applicable.
(g) Governing Law. This Agreement and each Confirmation will be governed
by, and construed and enforced in accordance with, the substantive law of the
State of New York, without reference to its choice of law doctrine.
(h) Jurisdiction. Section 13(b) is hereby amended by: (i) deleting in the
second line of subparagraph (i) thereof the word "non-"; and (ii) deleting the
final paragraph thereof.
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) will apply to
Transactions with effect from the date of this Agreement. Notwithstanding
anything to the contrary in Section 2(c), amounts that are payable with respect
to the same Calculation Period shall be netted, as provided in Section 2(c),
even if such amounts are not due on the same Payment Date.
(j) "Affiliate" will have the meaning specified in Section 14; provided,
however, Party B shall be deemed to have no Affiliates.
Part 5. Other Provisions.
(a) Accuracy of Specified Information. With respect to Party A, Section
3(d) is hereby amended by adding in the third line thereof after the word
"respect" and before the period the words "or, in the case of audited or
unaudited financial statements or balance sheets, a fair presentation of the
financial condition of the relevant person."
(b) Transfer. Section 7 is hereby amended by:
(i) adding in the third line thereof after the word "party," the
words "which consent shall not be unreasonably withheld or
delayed" and adding in the third line thereof after the
clause "that: -" the words "provided that the Rating Agency
Condition is satisfied in all events (including in the event
of a transfer under Section 6(b)(ii));
(ii) adding in the second line of subparagraph (a) thereof after
the words "assets to," the words "or reorganization,
incorporation, reincorporation, reconstitution, or
reformation into or as";
(iii) deleting at the end of subparagraph (a) thereof the word
"and";
8
(iv) deleting in the second line of subparagraph (b) thereof the
period and replacing it with "; and";
(v) adding after subparagraph (b) thereof the following
subparagraph (c):
(c) in addition to, and not in lieu of, the preceding
transfer rights, Party A may, without recourse by Party B or
Party A's transferee to or against Party A, transfer this
Agreement, in whole, but not in part, to any of Party A's
Affiliates or any of the Affiliates of Goldman Group pursuant
to documentation prepared by Party A, provided that:
(i) either (A) such transferee must have a long-term,
unsecured, unsubordinated debt obligation ratings
or financial program ratings (or other similar
ratings) by S&P which are equal to or greater
than the comparable long-term, unsecured,
unsubordinated debt obligation ratings or
financial program ratings (or other similar
ratings) of Party A immediately prior to such
transfer, or (B) the obligations transferred to
such transferee must be guaranteed by Party A
pursuant to a guaranty in substantially the form
of the Guaranty of the Credit Support Provider or
other agreement or instrument consented to by
Party B or other agreement or instrument mutually
agreed upon by both parties and satisfactory to
S&P;
(ii) the transferee will not, as a result of such
transfer, be required to withhold or deduct on
account of a Tax under Section 2(d)(i) on the
next succeeding Scheduled Payment Date an amount
in excess of that which Party A would have been
required to so withhold or deduct on the next
succeeding Scheduled Payment Date in the absence
of such transfer unless the transferee will be
required to make payments of additional amounts
pursuant to Section 2(d)(i)(4) in respect of such
excess;
(iii) an Event of Default or a Termination Event does
not occur as a result of such transfer;
(iv) the Rating Agency Condition is satisfied. With
respect to the results described in subclause
(ii) above, Party A will cause the transferee to
make, and Party B will make, such reasonable
Payer Tax Representations and Payee Tax
Representations as may be mutually agreed upon by
the transferee and Party B in order to permit
such parties to
9
determine that such results will not occur upon
or after the transfer;
(v) Party A agrees to transfer only to a transferee
in a jurisdiction, which it is aware is a
"netting" jurisdiction, that is in which, by
opinion of counsel published by ISDA, netting
under this Agreement shall be enforceable; and
(vi) Party A will be responsible for any costs or
expenses incurred in connection with such
transfer.
(vi) adding at the end of Section 7 the following sentence:
Except as may otherwise be stated in Section 7(c) hereof or in the
documentation evidencing a transfer, a transfer of all of the
obligations of Party A made in compliance with this Section will
constitute an acceptance and assumption of such obligations (and
any related interests so transferred) by the transferee, a novation
of the transferee in place of Party A with respect to such
obligations (and any related interests so transferred), and a
release and discharge by Party B of Party A from, and an agreement
by Party B not to make any claim for payment, liability, or
otherwise against Party A with respect to, such obligations from
and after the effective date of the transfer.
(c) Set-Off. Notwithstanding the last sentence of the first paragraph of
Section 6(e) of this Agreement, but without affecting the provisions of this
Agreement requiring the calculation of certain net payment amounts, as a result
of an Event of Default or Termination Event or otherwise, all payments under
this Agreement will be made without set-off or counterclaim.
(d) Reference Market-makers. The definition of "Reference Market-makers"
in Section 14 is hereby amended by adding in the fourth line thereof after the
word "credit" the words "or to enter into transactions similar in nature to
Transactions".
(e) Severability. If any term, provision, covenant, or condition of this
Agreement, or the application thereof to any party or circumstance, shall be
held to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Agreement had been executed with the invalid
or unenforceable portion eliminated, so long as this Agreement as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Agreement and the deletion of such
portion of this Agreement will not substantially impair the respective benefits
or expectations of the parties to this Agreement; provided, however, that this
severability provision shall not be applicable if any provision of Section 2,
5, 6, or 13 (or any definition or provision in Section 14 to the extent it
relates to, or is used in or in connection with any such Section) shall be so
held to be invalid or unenforceable.
10
(f) Waiver of Right to Trial by Jury. Each party hereby irrevocably
waives, to the fullest extent permitted by applicable law, any right it may
have to trial by jury in respect of any suit, action or proceeding relating to
this Agreement.
(g) Credit Support Default. Subparagraph (3) of Section 5(a)(iii) is
hereby amended by adding in the second line thereof after the word "Document"
and before the semicolon the words "(or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf)."
(h) Additional Representations. Section 3 is hereby amended by adding the
following additional subsections:
(i) No Agency. With respect to Party A, it is entering into this
Agreement and each Transaction as principal (and not as agent or in
any other capacity, fiduciary or otherwise) and, with respect to
Party B, Xxxxx Fargo Bank, National Association is entering into
the Agreement in its capacity as Securities Administrator of Party
B.
(ii) Eligible Contract Participant. It is an "eligible contract
participant" as defined in the U.S. Commodity Exchange Act.
(iii) Non-Reliance. Party A is acting for its own account and Xxxxx
Fargo Bank, National Association is acting as Securities
Administrator for Party B. It has made its own independent
decisions to enter into that Transaction and as to whether that
Transaction is appropriate or proper for it based upon its own
judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into that Transaction; it being understood that information
and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. No communication
(written or oral) received from the other party shall be deemed to
be an assurance or guarantee as to the expected results of that
Transaction.
(iv) Assessment and Understanding; Status of Parties. It is capable
of assessing the merits of and understanding (on its own behalf or
through independent professional advice), and understands and
accepts, the terms, conditions and risks of that Transaction. It is
also capable of assuming, and assumes, the risks of that
Transaction. The other party is not acting as a fiduciary for or an
adviser to it in respect of that Transaction.
(i) RESERVED.
(j) Regarding Party A. Party B acknowledges and agrees that Party A has
had and will have no involvement in and, accordingly, accepts no responsibility
for: (i) the
11
establishment, structure, or choice of assets of Party B; (ii) the selection of
any person performing services for or acting on behalf of Party B; (iii) the
selection of Party A as the counterparty; (iv) the terms of the Certificates;
(v) the preparation of or passing on the disclosure and other information
contained in any prospectus or prospectus supplement for the Certificates, the
Master Servicing and Trust Agreement, or any other agreements or documents used
by Party B or any other party in connection with the marketing and sale of the
Certificates; (vi) the ongoing operations and administration of Party B,
including the furnishing of any information to Party B which is not
specifically required under this Agreement; or (vii) any other aspect of Party
B's existence except for those matters specifically identified in this
Agreement.
(k) No Recourse. The Certificates represent an equity interest in Party B
only and the foregoing does not represent an interest in or obligation of Party
A, and no recourse may be had by the holders of the Certificates against Party
A or its assets with respect to the Notes and the Certificates and/or this
Agreement.
(l) Indemnifiable Tax. Party A agrees that Party B will not be required
to pay any additional amounts pursuant to Section 2(d)(i)(4) of the Agreement
in respect of an Indemnifiable Tax. If Party A is required to pay additional
amounts in respect of a withholding tax pursuant to Section 2(d)(i)(4) of this
Agreement, Party A may transfer this Agreement, subject to satisfaction of the
Rating Agency Condition, as provided in Section 6(b)(ii) of this Agreement and
such transfer shall not require the consent of Party B to the extent it is in
conformance with the provisions of Section 7(c), as amended herein.
(m) Additional Termination Events.
(i) It shall be an Additional Termination Event, with Party A as
the sole Affected Party, if the Depositor determines at any
time that it is required for purposes of compliance with Item
1115(b) of Regulation AB to provide any financial or other
data relating to Party A and, within 15 calendar days of such
determination, Party A fails to assign this Agreement and all
of its obligations hereunder to a substitute counterparty
that (A) has agreed to provide any financial or other data
required under Regulation AB, (B) has agreed to provide
indemnifications relating to such financial or other data
acceptable to the Depositor, (C) satisfies the Rating Agency
Condition and (D) is approved by the Depositor (which
approval shall not be unreasonably withheld). For the
avoidance of doubt, unless otherwise specified in this
Agreement, Party A shall be under no obligation to provide
any such financial or other data, whether in connection with
this Termination Event or otherwise. For purposes of this
Termination Event, (i) "Commission" shall mean the Securities
and Exchange Commission, (ii) "Depositor" shall mean GS
Mortgage Securities Corp., and (iii) "Regulation AB" shall
mean the Asset Backed Securities Regulation AB, 17 C.F.R.
ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518,
70
12
Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its
staff from time to time.
(ii) It shall also be an Additional Termination Event if (i) an
Optional Termination Date is designated pursuant to the
Master Servicing and Trust Agreement (a "Redemption
Termination") and (ii) there remains no more than 5 Business
Days prior to the proposed Redemption Date. In the case of a
Redemption Termination, both Party A and Party B shall have
the right to cause a termination of this Agreement and, for
purposes of Section 6(e)(ii) of this Agreement, Party B shall
be the sole Affected Party. Following notification from the
Securities Administrator that it has received a redemption
notice, Party A shall provide the Securities Administrator
from time to time, upon request, with good faith estimates of
the amount that would be payable under Section 6(e)(ii) in
the event of such Redemption Termination. Any termination
payment payable in respect of such Additional Termination
Event shall be paid on the relevant Redemption Date.
(iii) (I) It shall also be an Additional Termination Event, with
Party A as the sole Affected Party (except as expressly
provided herein) if Party A, a replacement counterparty, or a
person or an entity that guarantees the obligations of such
replacement counterparty, as the case may be, has a rating
that does not satisfy the Required Hedge Counterparty Rating
(but is at least "BBB-" or "A-3" (if applicable) by S&P and
at least "A1" by Moody's and none of the following events has
occurred:
(A) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may
be, transfers this Agreement, in whole, but not
in part, to a counterparty that satisfies the
Required Hedge Counterparty Rating, subject to
satisfaction of the Rating Agency Condition;
(B) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may
be, collateralizes its Exposure to Party B
pursuant to an ISDA Credit Support Annex, subject
to satisfaction of the Rating Agency Condition,
as applicable; provided that such ISDA Credit
Support Annex shall be made a Credit Support
Document for Party A pursuant to an amendment of
this Agreement in a form acceptable to the
Securities Administrator which amendment shall
also be subject to satisfaction of Rating Agency
Condition;
(C) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, the
obligations of Party A or such
13
replacement counterparty, as the case may be,
under this Agreement are guaranteed by a person
or entity that satisfies the Required Hedge
Counterparty Rating, subject to satisfaction of
the Rating Agency Condition; or
(D) within 30 days of such failure to satisfy the
Required Hedge Counterparty Rating, Party A or
such replacement counterparty, as the case may
be, takes such other steps, if any, to enable the
Issuer to satisfy the Rating Agency Condition.
(II) It shall also be an Additional Termination Event,
with Party A as the sole Affected Party (except as
expressly provided herein) if Party A, a replacement
counterparty, or a person or an entity that guarantees
the obligations of such replacement counterparty, as
the case may be, has a rating withdrawn or reduced
below "BBB-" or "A-3" (if applicable) by S&P or of less
than "A1" by Moody's and within 7 days thereafter,
Party A or such replacement counterparty, as the case
may be, while collateralizing its Exposure to Party B,
fails to transfer this Agreement, in whole, but not in
part, to a counterparty that satisfies the Required
Hedge Counterparty Rating, subject to satisfaction of
the Rating Agency Condition.
Upon downgrade of Party A below the Required Hedge
Counterparty Rating or below "BBB-" or "A-3" (if applicable)
by S&P or below "A1" by Moody's, or if S&P or Moody's
withdraws its ratings for any reason, Party A will promptly
give notice of the circumstances to Party B and to the rating
agencies that at the time are providing ratings for the
Certificates.
Party B shall be entitled to (A)(1) in case of an Additional
Termination Event described in Part 5(m)(iii)(I), designate a
date that is not earlier than the expiration of the 30 day
period referred to in Part 5(m)(iii)(I) as an Early
Termination Date in respect of all transactions under this
Agreement by giving notice to Party A at least 10 days prior
to the date so designated (which notice may be given prior to
the expiration of such 30 day period) and (2) in case of an
Additional Termination Event described in this Part
5(m)(iii)(II), immediately designate an Early Termination
Date, in respect of all transactions under this Agreement by
giving notice to Party A and (B) no later than the respective
dates specified in clause (A)(1) and (A)(2), transfer the
rights and obligations of Party A hereunder to a counterparty
that satisfies the Required Hedge Counterparty Rating,
subject to satisfaction of the Rating Agency Condition.
In connection with a transfer of this Agreement as described
in this Part 5(m)(iii), Party A shall, at its sole cost and
expense, use commercially reasonable efforts to seek a
replacement counterparty. In addition, if Party A
14
pursues any of the alternative actions contemplated in
paragraphs (A), (B), (C) and (D) of Part 5(m)(iii)(I) above,
it shall do so at its sole cost and expense.
As used herein, "Required Hedge Counterparty Rating" means,
with respect to Party A, a replacement counterparty or an
entity guaranteeing the obligations of such replacement
counterparty, (x) either (i) if such counterparty or entity
has only a long-term rating by Moody's, a long-term senior,
unsecured debt obligation rating, financial program rating or
other similar rating (as the case may be, the "Long-Term
rating") of at least "Aa3" by Moody's and if rated "Aa3" by
Xxxxx'x is not on negative credit watch by Moody's or (ii) if
such counterparty or entity has a Long-Term Rating and a
short-term rating by Moody's, a Long-Term Rating of at least
"A1" by Moody's and a short-term rating of "P-1" by Moody's
and, in each case, such rating is not on negative credit
watch by Moody's and (y) (i) a short-term rating of at least
"A-1" by S&P or (ii) if such counterparty or entity does not
have a short-term rating by S&P, a Long-Term Rating of at
least "A+" by S&P.
For the purposes of determining the Settlement Amount with
respect to the designation of an Early Termination Date
arising from the Additional Termination Event specified in
Party 5(m)(iii), both Party A and Party B shall be Affected
Parties. If the Settlement Amount calculated pursuant to this
subclause (iii) is an amount owing by Party B to Party A,
then such payment shall be a Swap Termination Payment payable
by Party B to Party A in accordance with the priority of
payments described in the Master Servicing and Trust
Agreement; provided, however, that (a) if Party A does not
after the exercise of commercially reasonable efforts cause
any of the conditions specified in Part 5(m)(iii)(I)(A) to
(D) to be satisfied, Party B shall use commercially
reasonable efforts to enter into a replacement Transaction(s)
with a counterparty acceptable to the Rating Agencies, in
respect of the Affected Transaction(s) relating to the
Additional Termination Event; and (b) where multiple
quotations are available such replacement Transaction(s)
shall be entered into based on the quoted price(s) that would
result in the largest payment made to Party B by the
replacement counterparty (it being understood that Party A
may be permitted to actively solicit and obtain such
quotations on behalf of Party B); and (c) to the extent that
payments are received by Party B as a result of entering into
such replacement Transaction(s), then Party A shall have
first priority as to such payments versus all other creditors
of Party B and Party B shall pay the lesser of (x) the amount
so received and (y) the Swap Termination Payment to the
extent not already paid by Party B over to Party A
immediately upon receipt.
As used herein, "Exposure" means, as of any date of
determination, the amount, if any, that would be payable to
Party B by Party A under this Agreement if an Early
Termination Date were to occur as of such date of
15
determination as a result of a Termination Event, Party A
were the sole Affected Party, all Transactions were
terminated in connection with such Early Termination Date and
(solely for purposes of determining Exposure) the amount of
such payment were calculated using Market Quotation.
For any Additional Termination Event, the date that Party A or
Party B, as the case may be, specifies in its notice of its
election to terminate shall be the Early Termination Date for the
Transactions; provided, that solely in the case of an Additional
Termination Event described in subclause (ii) above, the Early
Termination Date shall be no earlier than the 3rd Business Day
preceding the Redemption Date and no later than the Redemption
Date.
(n) Indemnifiable Tax. The definition of "Indemnifiable Tax" in Section
14 is hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means any
Tax imposed in respect of a payment under this Agreement by reason
of a Change in Tax Law by a government or taxing authority of a
Relevant Jurisdiction of the party making such payment, unless the
other party is incorporated, organized, managed and controlled, or
considered to have its seat in such jurisdiction, or is acting for
purposes of this Agreement through a branch or office located in
such jurisdiction.
(o) Limited Recourse; Non-petition. Party A agrees that the obligations
of Party B hereunder are limited recourse obligations payable solely from the
assets of Party B, and due to the extent funds are available for the payment
thereof in accordance with the priority of payments described in the Master
Servicing and Trust Agreement. Party A agrees that it will not, prior to the
date which is at least one year and one day or, if longer, the then applicable
preference period following the payment in full of all the Certificates issued
pursuant to the Master Servicing and Trust Agreement and the expiration of all
applicable preference periods under Title 11 of the United States Code or other
applicable law relating to any such payment, acquiesce, petition or otherwise
invoke or cause Party B to invoke the process of any governmental authority for
the purpose of commencing or sustaining a case (whether voluntary or
involuntary) against Party B under any bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of Party B or any substantial part of its property or
ordering the winding-up or liquidation of the affairs of Party B. Nothing
contained herein shall prohibit Party A from submitting a claim, or proof of
claim, in any proceeding or process instituted by or against Party B by any
person other than Party A or its Affiliates. Party A and Party B agree that
this Part 5(o) shall survive the termination of this Agreement for any reason
whatsoever.
(p) Securities Administrator Capacity. It is expressly understood and
agreed by the parties hereto that insofar as this Agreement is executed by the
Securities Administrator (i) this Agreement is executed and delivered by Xxxxx
Fargo Bank, National Association, not in its individual capacity but solely as
Securities Administrator under the Master Servicing and Trust
16
Agreement in the exercise of the powers and authority conferred to and vested
in it thereunder and (ii) under no circumstances shall Xxxxx Fargo Bank,
National Association in its individual capacity be personally liable for the
payment of any indebtedness or expenses or be personally liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken under this Agreement on behalf of Party B or any assignee.
(q) Additional Party A Covenant. Following a failure to satisfy the
Required Hedge Counterparty Rating in accordance with Part 5(m)(iii)(I), Party
A shall take the actions described in accordance with Part 5(m)(iii)(I)(A),
(B), (C) or (D). Following a failure to satisfy the rating requirements set
forth in Part 5(m)(iii)(II), Party A shall take the actions described in
accordance with Part 5(m)(iii)(II).
(r) Agreements: Furnish Specified Information. Section 4(a) is hereby
amended by adding at the end thereof the following paragraph:
Notwithstanding the foregoing provisions of this Section 4(a), the
parties agree that, pursuant to the terms of the Power of Attorney
with respect to Party A referred to in Part 3(b) of this Schedule,
any one or more of the officers of Party A's general partner who
has been designated as an agent and attorney in fact of Party A
will so deliver to Party B or such government or taxing authority
the specified or requested forms, documents, or certificates.
(s) Confirmations. Transactions shall be promptly confirmed by the
parties by Confirmations exchanged by mail, telex, facsimile or other
electronic means. Where a Transaction is confirmed by means of an electronic
messaging system that the parties have elected to use to confirm such
Transaction (i) such confirmation will constitute a "Confirmation" as referred
to in this Agreement even where not so specified in the confirmation and (ii)
such Confirmation will supplement, form part of, and be subject to this
Agreement and all provisions in this Agreement will govern the Confirmation
except as modified therein.
(t) Tax Documentation. Section 4(a)(iii) of the Agreement is hereby
amended by adding prior to the existing text:
"upon the earlier of learning that any such form or document is required
or"
(u) Inconsistency-Trade Call. In the event of any inconsistency between a
telephone conversation, including a trade call and a Confirmation signed by
both parties, the Confirmation shall govern.
(v) Condition Precedent. The condition precedent in Section 2(a)(iii)(1)
does not apply to a payment and delivery owing by a party if the other party
shall have satisfied in full all its payment or delivery obligations under
Section 2(a)(i) and shall at the relevant time have no future payment or
delivery obligations, whether absolute or contingent, under Section 2(a)(i).
17
(w) Definitions. This Agreement shall be subject to the 2000 Definitions
(the "2000 Definitions") as published by the International Swaps and
Derivatives Association Inc. The provisions of the 2000 Definitions are
incorporated by reference in and shall be deemed a part of this Agreement,
except that all references in the 2000 Definitions to a "Swap Transaction"
shall be deemed references to a "Transaction" for the purposes of this
Agreement. Capitalized terms used and not otherwise defined herein (or in the
2000 Definitions) shall have the respective meanings ascribed to such terms in
the Master Servicing and Trust Agreement referred to in Part 3(b). If in
relation to any Transaction there is any inconsistency between the 2000
Definitions, this Agreement, the Master Servicing and Trust Agreement, any
Confirmation and any other definitions published by ISDA that are incorporated
into any Confirmation, the following will prevail for purposes of such
Transaction in the order of precedence indicated: (i) such Confirmation
(without reference to any definitions or provisions incorporated therein); (ii)
the Master Servicing and Trust Agreement; (iii) this Agreement; (iv) such other
definitions; and (v) the 2000 Definitions.
(x) Amendments. Section 9(b) is hereby amended as follows:
(i) by inserting the following phrase immediately prior to the
period at the end of the sentence: "and the Rating Agency Condition
is satisfied"; and
(ii) by adding the following text thereto immediately following the
first sentence: "Amendments to this Agreement or the Schedule may
not be effected in a Confirmation."
(y) "Rating Agency Condition" means, with respect to any action to which
a Rating Agency Condition applies, that each rating agency then rating the
Certificates shall have been given ten days (or such shorter period as is
acceptable to each such rating agency) prior notice of that action and that
each such rating agency shall have notified the Securities Administrator in
writing that such action will not result in a reduction, qualification or
withdrawal of the then current rating of the Certificates that it maintains.
18
IN WITNESS WHEREOF, the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
XXXXXXX SACHS MITSUI MARINE
DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxx Rudor
--------------------------------
Name: Xxxxx Rudor
Title: Vice President
Date: May 30, 2007
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Securities
Administrator on behalf of the
Supplemental Interest Trust with
respect to the GSAA Home Equity Trust
2007-6 Asset-Backed Certificates,
Series 2007-6
By: /s/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title: Vice President
Date: May 30, 2007
Xxxxxxx Sachs Capital Markets, L.P. | 00 Xxxxx Xxxxxx |
-------------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000 | Tel: 000-000-0000
--------------------------------------------
swapconfirms2007: xxxxx00-0_xxxx000000.xx
---------
[LOGO OMITTED] Xxxxxxx
Sachs
---------
CONFIRMATION
DATE: May 24, 2007
TO: Xxxxxxx Xxxxx Mortgage Company, L.P. (Account No.: 760-02799)
Attention: Xxxxxx Xxxxxxx
TO: Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Sachs Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS705570 (310000000) / (006 831 671)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Xxxxx Capital Markets, L.P. (" GSCM") and
Xxxxxxx Sachs Mortgage Company, L.P. ("Counterparty"). This communication
constitutes a "Confirmation" as referred to in paragraph 2. below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM
and Counterparty as to the terms of the Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit
of the certificate holders of the GSAA Home Equity Trust 2007-6 ("GSAA"). This
Transaction shall constitute a "Transaction" within the scope of, and this
Confirmation shall supplement, form a part of, and be subject to, an agreement
in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the
"ISDA Form") as if the parties had executed an agreement in such form effective
as of the Trade Date but without any Schedule, except for (i) the election of
Loss and Second Method, (ii) the election of New York law (without regard to
the conflicts of law principles) as the governing law, (iii) the election of US
Dollars as the Termination Currency, (iv) the election that subparagraph (ii)
of Section 2(c) will apply to Transactions, (v) only Section 5(a)(i) Failure to
Pay and Section 5(a)(vii) Bankruptcy will be applicable to the parties (all
other Events of Default will not apply to either party), (vi) Section 5(a)(i)
is modified by replacing the word "third" in the last line of Section 5(a)(i)
with the word "first"), (vii) only Section 5(b)(i) Illegality, Section 5(b)(ii)
Tax Event and Section 5(b)(iii) Tax Event Upon Merger will be applicable to the
parties (all other Termination Events will not apply to either party) and
(viii) Set off under Section 6(e) will not apply. In the event of any
inconsistency between the Definitions, the ISDA Form and this Confirmation,
this Confirmation will govern. Notwithstanding the foregoing, it is understood
and agreed that upon the assignment of this Transaction to GSMMDP and GSAA
pursuant to the terms of Paragraph 4A hereof, this Transaction shall be
governed by the ISDA Master Agreement and the Schedule thereto between such
parties dated as of May 30, 2007 and shall not be governed by the provisions
contained in the second sentence of this Paragraph.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 680,506,000 (subject to adjustment in
accordance with the Amortization Schedule set
forth in Annex I hereto)
Trade Date: May 24, 2007
Effective Date: May 30, 2007
Termination Date: May 25, 2012, subject to adjustment in
accordance with the Modified Following Business
Day Convention
Floating Amounts:
-----------------
Floating Rate Payer: GSCM
Floating Rate Early Payment On the day which is one (1) Business Day
Dates: prior to each Floating Rate Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated 1 Month
Maturity:
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count Actual/360
Fraction:
Floating Rate Period End Monthly, on the 25th day of each month,
Dates: commencing on June 25, 2007 and ending
on the Termination Date, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Fixed Amounts:
--------------
Fixed Rate Payer: Counterparty
Fixed Rate Payer Early On the day which is one (1) Business Day
Payment Dates: prior to each Fixed Rate Period End Date.
Fixed Rate: 5.1535%
Fixed Rate Day Count Actual/360
Fraction:
Fixed Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on June 25, 2007 and ending on
the Termination Date, subject to
adjustment in accordance with the Modified
Following Business Day Convention.
Business Days: New York
Calculation Agent: GSCM
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties that
this Transaction shall be subject to assignment first by Counterparty to GS
Mortgage Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Xxxxx
Mitsui Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage
Securities Corp. to GSAA, and by GSAA, through a collateral assignment, to
Xxxxx Fargo Bank, National Association (the "Securities Administrator"), as
securities administrator on behalf of the holders of the GSAA Home Equity Trust
2007-6 Asset-Backed Certificates, (CUSIP Numbers: 36245R AA7, 36245R AB 5,
36245R AC3, 36245R AD1, 36245R AE9, 36245R AF6, 36245R AG4, 36245R AH2, 36245R
AJ8, 36245R AK5, 36245R AL3, 36245R AM1, 36245R AN9, 36245R AP4, 36245R AP4,
36245R AQ2, 36245R AR0, 36245R AS8, 36245R AT6, 36245R AU3, 36245R AV1 the
"Certificates", (each such assignee is referred to herein as an "Assignee" and
each such assignor is referred to herein as an "Assignor"). These assignments
shall occur on the day the Assignor and Assignee agree to such assignment and
provide written or oral notification of the effective date of
assignment to the relevant constant party, or, in the case of a simultaneous
double assignment, the other assignor and/or assignee, as appropriate (the
"Constant Party") (each such day hereinafter referred to as an "Assignment
Date"). Furthermore, with respect to each assignment of the Transaction to an
Assignee, the Assignee shall accept assignment of the Transaction subject to
all terms of this Confirmation and all references to the term "Counterparty"
herein shall be deemed references to each subsequent assignee of Counterparty
and all references to the term GSCM herein shall be deemed references to each
subsequent assignee of GSCM. On each Assignment Date, Constant Party, the
relevant Assignor and the relevant Assignee, in consideration of the promises
and the mutual covenants contained herein and for other good and valuable
consideration received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, the Transaction. Assignor releases and discharges
Constant Party from, and agrees not to make any claim against Constant Party
with respect to, any obligations of Constant Party arising and to be performed
under and in respect of the Transaction after the Assignment Date. Assignor
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes and agrees
to perform each and every obligation of Assignor arising and to be performed
under the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Securities Administrator as
Assignee, the Securities Administrator is an assignee solely by reason of its
capacity as securities administrator (and not in its individual capacity) and
the Securities Administrator in its individual capacity shall have no
obligation or liability for payment of any indebtedness or expenses and shall
not be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment and transfer by Assignor
and the assumption by Assignee referred to above. Constant Party releases and
discharges Assignor from, and agrees not to make any claim against Assignor
with respect to, any obligations of Assignor arising and to be performed under
and in respect of the Transaction after the Assignment Date. Constant Party
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(d) Assignor hereby represents and warrants to, and covenants and agrees with,
Assignee and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization;
(ii) it has all requisite power and authority to assign and delegate to
Assignee its rights and obligations under the Transaction as provided herein
and has taken all necessary action to authorize such assignment and delegation;
and (iii) such assignment and delegation are its legal, valid, and binding
obligations enforceable against Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and agrees with,
Assignor and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization;
(ii) it has all requisite power and authority to assume the rights and
obligations of Assignor under the Transaction as provided herein and perform
its obligations under the Transaction and has taken all necessary action to
authorize such assumption and performance; and (iii) such assumption and the
Transaction are its legal, valid, and binding obligations enforceable against
Assignee in accordance with the terms hereof.
B. Securities Administrator Capacity. It is expressly understood and agreed by
the parties hereto that insofar as this Confirmation is executed by the
Securities Administrator (i) this Confirmation is executed and delivered by
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as securities administrator under the Master Servicing
and Trust Agreement dated as of May 1, 2007 (the "Master Servicing and Trust
Agreement"), in the exercise of the powers and authority conferred and vested
in it thereunder, (ii) each of the representations, undertakings and agreements
herein made on behalf of the trust formed under the Master Servicing and Trust
Agreement is made and intended not as personal representations, undertakings
and agreements of the Securities Administrator but is made and intended solely
for the purpose of binding only the trust, and (iii) under no circumstances
shall Xxxxx Fargo Bank, National Association, in its individual capacity be
personally liable for the payment of any indebtedness or expenses or be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by it on behalf of the GSAA Home Equity
Trust 2007-6 under this Confirmation.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS705570 (310000000) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between GSAA,
GSCM, GSMMDP and Counterparty, with respect to the particular Transaction to
which this Confirmation relates, by manually signing this Confirmation and
providing the other information requested herein and immediately returning an
executed copy to Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX SACHS MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
---------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Securities Administrator on behalf of the Supplemental Interest Trust
with respect to the GSAA Home Equity Trust 2007-6 Asset-Backed Certificates,
Series 2007-6
By: /s/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title: Vice President
Annex I
Amortization Schedule
For all Calculation Periods to but excluding**: The applicable USD
--------------------------- ------------------- ------------------
from and including**: Notional Amount
--------------------- ---------------
shall be:
---------
May 30, 2007 June 25, 2007 680,506,000.00
June 25, 2007 July 25, 2007 663,048,000.00
July 25, 2007 August 25, 2007 632,169,000.00
August 25, 2007 September 25, 2007 602,792,000.00
September 25, 2007 October 25, 2007 574,845,000.00
October 25, 2007 November 25, 2007 548,258,000.00
November 25, 2007 December 25, 2007 522,964,000.00
December 25, 2007 January 25, 2008 498,901,000.00
January 25, 2008 February 25, 2008 476,009,000.00
February 25, 2008 March 25, 2008 454,231,000.00
March 25, 2008 April 25, 2008 433,512,000.00
April 25, 2008 May 25, 2008 413,802,000.00
May 25, 2008 June 25, 2008 395,051,000.00
June 25, 2008 July 25, 2008 377,212,000.00
July 25, 2008 August 25, 2008 360,242,000.00
August 25, 2008 September 25, 2008 344,097,000.00
September 25, 2008 October 25, 2008 328,738,000.00
October 25, 2008 November 25, 2008 314,126,000.00
November 25, 2008 December 25, 2008 300,225,000.00
December 25, 2008 January 25, 2009 287,001,000.00
January 25, 2009 February 25, 2009 274,420,000.00
February 25, 2009 March 25, 2009 262,452,000.00
March 25, 2009 April 25, 2009 251,066,000.00
April 25, 2009 May 25, 2009 240,235,000.00
May 25, 2009 June 25, 2009 229,930,000.00
June 25, 2009 July 25, 2009 220,127,000.00
July 25, 2009 August 25, 2009 210,801,000.00
August 25, 2009 September 25, 2009 201,929,000.00
September 25, 2009 October 25, 2009 193,489,000.00
October 25, 2009 November 25, 2009 184,175,000.00
November 25, 2009 December 25, 2009 174,792,000.00
December 25, 2009 January 25, 2010 165,866,000.00
January 25, 2010 February 25, 2010 157,373,000.00
February 25, 2010 March 25, 2010 149,294,000.00
March 25, 2010 April 25, 2010 141,608,000.00
April 25, 2010 May 25, 2010 134,296,000.00
May 25, 2010 June 25, 2010 127,340,000.00
June 25, 2010 July 25, 2010 125,228,000.00
July 25, 2010 August 25, 2010 118,933,000.00
August 25, 2010 September 25, 2010 112,943,000.00
September 25, 2010 October 25, 2010 107,246,000.00
October 25, 2010 November 25, 2010 101,825,000.00
November 25, 2010 December 25, 2010 96,669,000.00
December 25, 2010 January 25, 2011 91,763,000.00
January 25, 2011 February 25, 2011 87,096,000.00
February 25, 2011 March 25, 2011 82,657,000.00
March 25, 2011 April 25, 2011 78,433,000.00
April 25, 2011 May 25, 2011 74,415,000.00
May 25, 2011 June 25, 2011 70,593,000.00
June 25, 2011 July 25, 2011 66,957,000.00
July 25, 2011 August 25, 2011 63,497,000.00
August 25, 2011 September 25, 2011 60,206,000.00
September 25, 2011 October 25, 2011 57,075,000.00
October 25, 2011 November 25, 2011 54,097,000.00
November 25, 2011 December 25, 2011 51,263,000.00
December 25, 2011 January 25, 2012 48,566,000.00
January 25, 2012 February 25, 2012 46,001,000.00
February 25, 2012 March 25, 2012 43,561,000.00
March 25, 2012 April 25, 2012 41,236,000.00
April 25, 2012 May 25, 2012 39,025,000.00
**subject to adjustment in accordance with the Modified Following Business Day
Convention
Xxxxxxx Xxxxx Capital Markets, L.P. | 00 Xxxxx Xxxxxx |
-------------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000 | Tel: 000-000-0000
--------------------------------------------
swapconfirms2007: xxxxx00-0_xxx_xxxx_xxxx000000.xx
---------
[LOGO OMITTED] Xxxxxxx
Sachs
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CONFIRMATION
DATE: May 24, 2007
TO: Xxxxxxx Xxxxx Mortgage Company, L.P. (Account No.: 760-02799)
Attention: Xxxxxx Xxxxxxx
TO: Xxxxxxx Xxxxx Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Sachs Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS705580 (310000000) / (006 831 671)
The purpose of this communication is to set forth the terms and conditions of
the above referenced transaction entered into on the Trade Date specified below
(the "Transaction") between Xxxxxxx Xxxxx Capital Markets, L.P. (" GSCM") and
Xxxxxxx Sachs Mortgage Company, L.P. ("Counterparty"). This communication
constitutes a "Confirmation" as referred to in paragraph 2. below.
1. The definitions and provisions contained in the 2000 ISDA Definitions (the
"Definitions"), as published by the International Swaps and Derivatives
Association, Inc. are incorporated into this Confirmation.
2. This Confirmation evidences a complete and binding agreement between GSCM
and Counterparty as to the terms of the Transaction to which this Confirmation
relates, and this Confirmation evidences the sole Transaction for the benefit
of the certificate holders of the GSAA Home Equity Trust 2007-6 ("GSAA"). This
Transaction shall constitute a "Transaction" within the scope of, and this
Confirmation shall supplement, form a part of, and be subject to, an agreement
in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross Border) (the
"ISDA Form") as if the parties had executed an agreement in such form effective
as of the Trade Date but without any Schedule, except for (i) the election of
Loss and Second Method, (ii) the election of New York law (without regard to
the conflicts of law principles) as the governing law, (iii) the election of US
Dollars as the Termination Currency, (iv) the election that subparagraph (ii)
of Section 2(c) will apply to Transactions, (v) only Section 5(a)(i) Failure to
Pay and Section 5(a)(vii) Bankruptcy will be applicable to the parties (all
other Events of Default will not apply to either party), (vi) Section 5(a)(i)
is modified by replacing the word "third" in the last line of Section 5(a)(i)
with the word "first"), (vii) only Section 5(b)(i) Illegality, Section 5(b)(ii)
Tax Event and Section 5(b)(iii) Tax Event Upon Merger will be applicable to the
parties (all other Termination Events will not apply to either party) and
(viii) Set off under Section 6(e) will not apply. In the event of any
inconsistency between the Definitions, the ISDA Form and this Confirmation,
this Confirmation will govern. Notwithstanding the foregoing, it is understood
and agreed that upon the assignment of this Transaction to GSMMDP and GSAA
pursuant to the terms of Paragraph 4A hereof, this Transaction shall be
governed by the ISDA Master Agreement and the Schedule thereto between such
parties dated as of May 30, 2007 and shall not be governed by the provisions
contained in the second sentence of this Paragraph.
3. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 115,193,000 (subject to adjustment in
accordance with the Amortization Schedule set
forth in Annex I hereto)
Trade Date: May 24, 2007
Effective Date: May 30, 2007
Termination Date: October 25, 2009, subject to adjustment in
accordance with the Modified Following Business
Day Convention
Floating Amounts:
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Floating Rate Payer: GSCM
Floating Rate Early Payment On the day which is one (1) Business Day prior
Dates: to each Floating Rate Period End Date.
Floating Rate Option: USD-Federal Funds-H.15; provided, however,
that the definition of US-Federal Funds-H.15 in
the Definitions will be amended such that the
rate for the Reset Date will taken from the day
that is one (1) New York Banking Day preceding
that Reset Date.
Floating Rate Spread: None
Floating Rate Reset Dates: Each day during the
Calculation Period
Floating Rate Day Count Actual/360
Fraction:
Floating Rate Period End Monthly, on the 25th day of each month,
Dates: commencing on June 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Rate Cut-off Date: Four (4) New York Business Days prior to each
Floating Rate Period End Date
Averaging: Applicable
Method of Averaging: Weighted Average
Fixed Amounts:
--------------
Fixed Rate Payer: Counterparty
Fixed Rate Early Payer On the day which is one (1) Business Day
Payment Dates: prior to each Fixed Rate Period End Date.
Fixed Rate: 5.122%
Fixed Rate Day Count Actual/360
Fraction:
Fixed Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on June 25, 2007 and ending on the
Termination Date, subject to adjustment in
accordance with the Modified Following Business
Day Convention.
Business Days: New York
Calculation Agent: GSCM
4. Additional Provisions:
A. Assignment Provisions: It is acknowledged and agreed by the parties that
this Transaction shall be subject to assignment first by Counterparty to GS
Mortgage Securities Corp., then, simultaneously, (i) by GSCM to Xxxxxxx Xxxxx
Mitsui Marine Derivative Products, L.P. ("GSMMDP") and (ii) by GS Mortgage
Securities Corp. to
GSAA, and by GSAA, through a collateral assignment, to Xxxxx Fargo Bank,
National Association (the "Securities Administrator"), as securities
administrator on behalf of the holders of the GSAA Home Equity Trust 2007-6
Asset-Backed Certificates, (CUSIP Numbers: 36245R AA7, 36245R AB 5, 36245R AC3,
36245R AD1, 36245R AE9, 36245R AF6, 36245R AG4, 36245R AH2, 36245R AJ8, 36245R
AK5, 36245R AL3, 36245R AM1, 36245R AN9, 36245R AP4, 36245R AP4, 36245R AQ2,
36245R AR0, 36245R AS8, 36245R AT6, 36245R AU3, 36245R AV1 the "Certificates",
(each such assignee is referred to herein as an "Assignee" and each such
assignor is referred to herein as an "Assignor"). These assignments shall occur
on the day the Assignor and Assignee agree to such assignment and provide
written or oral notification of the effective date of assignment to the
relevant constant party, or, in the case of a simultaneous double assignment,
the other assignor and/or assignee, as appropriate (the "Constant Party") (each
such day hereinafter referred to as an "Assignment Date"). Furthermore, with
respect to each assignment of the Transaction to an Assignee, the Assignee
shall accept assignment of the Transaction subject to all terms of this
Confirmation and all references to the term "Counterparty" herein shall be
deemed references to each subsequent assignee of Counterparty and all
references to the term GSCM herein shall be deemed references to each
subsequent assignee of GSCM. On each Assignment Date, Constant Party, the
relevant Assignor and the relevant Assignee, in consideration of the promises
and the mutual covenants contained herein and for other good and valuable
consideration received, agree as follows:
(a) Assignor sells, assigns, transfers, and sets over to Assignee, its
successors and permitted assigns, all of its right, title, and interest in, to,
under, and in respect of, the Transaction. Assignor releases and discharges
Constant Party from, and agrees not to make any claim against Constant Party
with respect to, any obligations of Constant Party arising and to be performed
under and in respect of the Transaction after the Assignment Date. Assignor
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(b) Assignee accepts such sale, assignment and transfer and assumes and agrees
to perform each and every obligation of Assignor arising and to be performed
under the Transaction after the Assignment Date, with the same force and effect
as if Assignee had been a party to the Transaction originally; it being
understood and agreed that, with respect to the Securities Administrator as
Assignee, the Securities Administrator is an assignee solely by reason of its
capacity as securities administrator (and not in its individual capacity) and
the Securities Administrator in its individual capacity shall have no
obligation or liability for payment of any indebtedness or expenses and shall
not be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken hereunder.
(c) Constant Party consents to the sale, assignment and transfer by Assignor
and the assumption by Assignee referred to above. Constant Party releases and
discharges Assignor from, and agrees not to make any claim against Assignor
with respect to, any obligations of Assignor arising and to be performed under
and in respect of the Transaction after the Assignment Date. Constant Party
agrees that Assignee has no liability with respect to any obligation arising or
to be performed under and in respect of the Transaction prior to or on the
Assignment Date.
(d) Assignor hereby represents and warrants to, and covenants and agrees with,
Assignee and Constant Party that: (i) it is duly organized, validly existing,
and in good standing under the law of the jurisdiction of its organization;
(ii) it has all requisite power and authority to assign and delegate to
Assignee its rights and obligations under the Transaction as provided herein
and has taken all necessary action to authorize such assignment and delegation;
and (iii) such assignment and delegation are its legal, valid, and binding
obligations enforceable against Assignor in accordance with the terms hereof.
(e) Assignee hereby represents and warrants to, and covenants and agrees with,
Assignor and Constant Party that: (i) it is duly organized, validly existing,
and in good standing
under the law of the jurisdiction of its organization; (ii) it has all
requisite power and authority to assume the rights and obligations of Assignor
under the Transaction as provided herein and perform its obligations under the
Transaction and has taken all necessary action to authorize such assumption and
performance; and (iii) such assumption and the Transaction are its legal,
valid, and binding obligations enforceable against Assignee in accordance with
the terms hereof.
B. Securities Administrator Capacity. It is expressly understood and agreed by
the parties hereto that insofar as this Confirmation is executed by the
Securities Administrator (i) this Confirmation is executed and delivered by
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as securities administrator under the Master Servicing and Trust
Agreement dated as of May 1, 2007 (the "Master Servicing and Trust Agreement"),
in the exercise of the powers and authority conferred and vested in it
thereunder, (ii) each of the representations, undertakings and agreements
herein made on behalf of the trust formed under the Master Servicing and Trust
Agreement is made and intended not as personal representations, undertakings
and agreements of the Securities Administrator but is made and intended solely
for the purpose of binding only the trust, and (iii) under no circumstances
shall Xxxxx Fargo Bank, National Association, in its individual capacity be
personally liable for the payment of any indebtedness or expenses or be
personally liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by it on behalf of the GSAA Home Equity
Trust 2007-6 under this Confirmation.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS705580 (310000000) carefully and immediately upon receipt so that errors or
discrepancies can be promptly identified and rectified and (b) to confirm that
the foregoing correctly sets forth the terms of the agreement between GSAA,
GSCM, GSMMDP and Counterparty, with respect to the particular Transaction to
which this Confirmation relates, by manually signing this Confirmation and
providing the other information requested herein and immediately returning an
executed copy to Swap Administration, facsimile No. 000-000-0000.
Very truly yours,
XXXXXXX SACHS CAPITAL MARKETS, L.P.
By: Xxxxxxx Xxxxx Capital Markets, L.L.C.
General Partner
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
Agreed and Accepted By:
XXXXXXX SACHS MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
Agreed and Accepted By:
Xxxxxxx Xxxxx Mortgage Company, L.P.
By: /s/ Xxxxxxxx Xxxx
---------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Agreed and Accepted By:
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Securities Administrator on behalf of the Supplemental Interest Trust
with respect to the GSAA Home Equity Trust 2007-6 Asset-Backed Certificates,
Series 2007-6
By: /s/ Xxxxxx Xxxx
---------------
Name: Xxxxxx Xxxx
Title: Vice President
Annex I
Amortization Schedule
For all Calculation Periods to but excluding**: The applicable USD
--------------------------- ------------------- ------------------
from and including**: Notional Amount shall be:
--------------------- -------------------------
May 30, 2007 June 25, 2007 115,193,000.00
June 25, 2007 July 25, 2007 107,781,000.00
July 25, 2007 August 25, 2007 100,729,000.00
August 25, 2007 September 25, 2007 94,020,000.00
September 25, 2007 October 25, 2007 87,638,000.00
October 25, 2007 November 25, 2007 81,566,000.00
November 25, 2007 December 25, 2007 75,790,000.00
December 25, 2007 January 25, 2008 70,295,000.00
January 25, 2008 February 25, 2008 65,067,000.00
February 25, 2008 March 25, 2008 60,094,000.00
March 25, 2008 April 25, 2008 55,362,000.00
April 25, 2008 May 25, 2008 50,861,000.00
May 25, 2008 June 25, 2008 46,579,000.00
June 25, 2008 July 25, 2008 42,506,000.00
July 25, 2008 August 25, 2008 38,630,000.00
August 25, 2008 September 25, 2008 34,943,000.00
September 25, 2008 October 25, 2008 31,436,000.00
October 25, 2008 November 25, 2008 28,099,000.00
November 25, 2008 December 25, 2008 24,925,000.00
December 25, 2008 January 25, 2009 21,905,000.00
January 25, 2009 February 25, 2009 19,032,000.00
February 25, 2009 March 25, 2009 16,299,000.00
March 25, 2009 April 25, 2009 13,699,000.00
April 25, 2009 May 25, 2009 11,225,000.00
May 25, 2009 June 25, 2009 8,872,000.00
June 25, 2009 July 25, 2009 6,633,000.00
July 25, 2009 August 25, 2009 4,503,000.00
August 25, 2009 September 25, 2009 2,477,000.00
September 25, 2009 October 25, 2009 550,000.00
**subject to adjustment in accordance with the Modified Following Business Day
Convention
