Exhibit 99.2
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of dated as of February 23, 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
2007-3 Asset-Backed
Certificates, Series 2007-3
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 of 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 isolation 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
full 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, reorganisation,
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 any 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 described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such 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)(l), (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
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) o5 (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 he entered into as soon as practicable
and may he 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 case
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)(1) 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 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 documentation 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) in 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 case) 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 ease 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 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 2007-3 Asset-Backed
Certificates, Series 2007-3
By: GSMMDPGP, Inc.
General Partner
/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxx
By:............................. By:.............................
Name: Name:
Title: VP Title: VP
Date: Date:
18 ISDA(R) 1992
EXECUTION COPY
SCHEDULE
to the
MASTER AGREEMENT
dated as of February 23, 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 2007-3 Asset-Backed
Certificates Series, 2007-3
("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:
Party required to deliver Date by which Covered by Section 3(d)
document Form/Document/ Certificate to be delivered Representation
Party A Power of Attorney with respect to At execution of this Yes
Party A Agreement
Party A Support Agreement dated as of At execution of this Yes
October 8, 1993 among Party A, Mitsui Agreement
Marine and Fire Insurance Co., Ltd.
("Mitsui Marine"), and The Xxxxxxx
Sachs 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 December 20, 2000 At execution of this Yes
between Mitsui Marine and Goldman Agreement
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 annual balance As soon as possible Yes
sheet of Party A following request of Party B
Party A Legal opinions with respect to Party A At execution of this No
Agreement
4
Party B Incumbency certificate or other At execution of this Yes
documents evidencing the authority, Agreement
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 Reports Promptly upon becoming Yes
available
Party B Legal opinion with respect to Party B At execution of this No
Agreement
Party B An executed copy of the Master Within 30 days after the No
Servicing and Trust Agreement, dated date of this Agreement
as of February 1, 2007, (the "Trust
Agreement") among GS Mortgage
Securities Corp., as depositor, U.S.
Bank National Association, as trustee,
Deutsche Bank National Trust Company,
The Bank of New York Trust Company, N.
A., and U.S. Bank National
Association, as custodians, 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
5
U.S.A.
Attention: Swap Administration
Telex No.: 421344
Answerback: GOLSAX
Facsimile No.: (000) 000-0000
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 Xxxxxxx-XXXX 0000-0
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:
6
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 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.
7
(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 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));
8
(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";
(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;
9
(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
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
10
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.
(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
11
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 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
12
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 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
13
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 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
14
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 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
15
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
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
16
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 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.
17
(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).
(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 XXXXX MITSUI MARINE DERIVATIVE
PRODUCTS, L.P.
By: GSMMDPGP, Inc., General Partner
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name:
Title: VP
Date:
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
2007-3 Asset-Backed Certificates, Series
2007-3
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name:
Title: VP
Date:
Capital Markets, L.P. | 00 Xxxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000 | Tel:
000-000-0000
swapconfirms2007: xxxx00-0_xxxx000000.xx
[XXXXXXX XXXXX LOGO]
CONFIRMATION
DATE: February 16, 2007
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No.: 760-02345)
Attention: Xxxxxx Xxxxxxx
TO: Xxxxxxx Sachs Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS702760 (600000000) / (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 Sachs Capital Markets, L.P. (" GSCM") and
Xxxxxxx Xxxxx 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 2007-3 ("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) New York law (without regard to the conflicts of
law principles) as the governing law, (iii) 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 February 23,
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 100,000,000 (subject to adjustment in
accordance with the Amortization Schedule set
forth in Annex I hereto)
Trade Date: February 16, 2007
Effective Date: February 23, 2007
Termination Date: June 25, 2009, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Initial Payment: USD 90,000 payable by GSCM to Counterparty on
the Effective Date
Floating Amounts:
Floating Rate Payer: GSCM
Floating Rate Early Payment Dates: On the day which is one (1) Business Day
prior to each Floating Rate Period End Date.
Floating Rate Option: USD-Federal Funds-H.15
Floating Rate Reset Dates: Each New York Business Day during the
Calculation Period
Floating Rate Day Count Fraction: Actual/360
Floating Rate Period End Dates: Monthly, on
the 25th day of each month,
commencing on March 25, 2007 and
ending on the Termination Date,
subject to adjustment in accordance
with the Modified Following Business
Day Convention.
Rate Cut-off: 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 Payment Dates: On the day which is one (1) Business Day
prior to each Fixed Rate Period End Date.
Fixed Rate: 5.195%
Fixed Rate Day Count Fraction: Actual/360
Fixed Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on March 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 Sachs 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 2007-3
Asset-Backed Certificates, (CUSIP Numbers: 33622EA AA 8, 0000XX XX 0, 0000XX XX
6, 3622EA XX 0, 0000XX XX 0, 0000XX XX 0, 3622EA AF 7, 3622EA AG 5, 3622EA AH 3,
3622EA AJ 9, 3622EA AK
6, 3622EA AL 4, 3622EA AM 2, 3622EA AN 0, 3622EA AP 5, 3622EA AQ 3 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 premises 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.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS702760 (600000000) 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 XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Sachs Capital Markets, L.L.C.
General Partner
By: _______________________________
Name:
Title:
Agreed and Accepted By:
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: __________________________
Name:
Title:
Agreed and Accepted By:
Xxxxxxx Sachs Mortgage Company, L.P.
By: ___________________
Name:
Title:
Agreed and Accepted By:
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Securities Adminsitrator on behalf of the Supplemental Interest Trust
with respect to the GSAA Home Equity Trust 2007-3 Asset-Backed Certificates,
Series 2007-3
By: ___________________
Name:
Title:
Annex I
Amortization Schedule
For all Calculation Periods to but excluding**: The applicable USD
from and including**: Notional Amount shall
be:
February 23, 2007 March 25, 2007 100,000,000.00
March 25, 2007 April 25, 2007 93,436,000.00
April 25, 2007 May 25, 2007 87,191,000.00
May 25, 2007 June 25, 2007 81,250,000.00
June 25, 2007 July 25, 2007 75,598,000.00
July 25, 2007 August 25, 2007 70,221,000.00
August 25, 2007 September 25, 2007 65,106,000.00
September 25, 2007 October 25, 2007 60,239,000.00
October 25, 2007 November 25, 2007 55,609,000.00
November 25, 2007 December 25, 2007 51,205,000.00
December 25, 2007 January 25, 2008 47,015,000.00
January 25, 2008 February 25, 2008 43,029,000.00
February 25, 2008 March 25, 2008 39,237,000.00
March 25, 2008 April 25, 2008 35,629,000.00
April 25, 2008 May 25, 2008 32,197,000.00
May 25, 2008 June 25, 2008 28,932,000.00
June 25, 2008 July 25, 2008 25,826,000.00
July 25, 2008 August 25, 2008 22,871,000.00
August 25, 2008 September 25, 2008 20,060,000.00
September 25, 2008 October 25, 2008 17,386,000.00
October 25, 2008 November 25, 2008 14,841,000.00
November 25, 2008 December 25, 2008 12,421,000.00
December 25, 2008 January 25, 2009 10,118,000.00
January 25, 2009 February 25, 2009 7,928,000.00
February 25, 2009 March 25, 2009 5,844,000.00
March 25, 2009 April 25, 2009 3,861,000.00
April 25, 2009 May 25, 2009 1,975,000.00
May 25, 2009 June 25, 2009 181,000.00
**Subject to adjustment in accordance with the Modifed Following Business Day
Convention
Xxxxxxx Sachs Capital Markets, L.P. | 00 Xxxxx Xxxxxx x Xxx Xxxx, Xxx Xxxx 00000
| Tel: 000-000-0000
swapconfirms2007: xxxx00-00_xxxx000000.xx
[XXXXXXX XXXXX LOGO OMITTED]
DATE: February 16, 2007
TO: Xxxxxxx Sachs Mortgage Company, L.P. (Account No.: 760-02345)
Attention: Xxxxxx Xxxxxxx
TO: Xxxxxxx Sachs Mitsui Marine Derivative Products, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FROM: Xxxxxxx Xxxxx Capital Markets, L.P.
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SUBJECT: Swap Transaction
REF NO: NUUS702750 (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 Sachs Capital Markets, L.P. (" GSCM") and
Xxxxxxx Xxxxx 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 2007-3 ("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) New York law (without regard to the conflicts of
law principles) as the governing law, (iii) 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 February 23,
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 1,177,474,000 (subject to adjustment in
accordance with the Amortization Schedule set
forth in Annex I hereto)
Trade Date: February 16, 2007
Effective Date: February 23, 2007
Termination Date: February 25, 2012, subject to adjustment in
accordance with the Modified Following
Business Day Convention
Initial Payment: USD 1,870,000 payable by GSCM to Counterparty
on the Effective Date
Floating Amounts:
Floating Rate Payer: GSCM
Floating Rate Early Payment Dates: On the day which is one (1) Business Day
prior to each Floating Rate Period End Date.
Floating Rate Option: USD-LIBOR-BBA
Floating Rate Designated Maturity: 1 Month
Floating Rate Spread: None
Floating Rate Reset Dates: The first day of each Calculation Period
Floating Rate Day Count Fraction: Actual/360
Floating Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on March 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 Payment Dates: On the day which is one (1) Business Day
prior to each Fixed Rate Period End Date.
Fixed Rate: 5.1725%
Fixed Rate Day Count Fraction: Actual/360
Fixed Rate Period End Dates: Monthly, on the 25th day of each month,
commencing on March 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
Governing Law: New York law
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 Sachs 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 2007-3
Asset-Backed Certificates, (CUSIP Numbers: 3622EA AA 8, 0000XX XX 0, 0000XX XX
6, 3622EA XX 0, 0000XX XX 0, 0000XX XX 0, 3622EA AF 7, 3622EA AG 5, 3622EA AH 3,
3622EA AJ 9, 3622EA AK 6, 3622EA AL 4, 3622EA AM 2, 3622EA AN 0, 3622EA AP 5,
3622EA AQ 3 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 premises 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.
5. The parties hereby agree (a) to check this Confirmation (Reference No.:
NUUS702750 (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 XXXXX CAPITAL MARKETS, L.P.
By: Xxxxxxx Sachs Capital Markets, L.L.C.
General Partner
By: _______________________________
Name:
Title:
Agreed and Accepted By:
XXXXXXX XXXXX MITSUI MARINE DERIVATIVE PRODUCTS, L.P.
By: GSMMDPGP, Inc.,
General Partner
By: __________________________
Name:
Title:
Agreed and Accepted By:
Xxxxxxx Sachs Mortgage Company, L.P.
By: ___________________
Name:
Title:
Agreed and Accepted By:
Xxxxx Fargo Bank, National Association, not in its individual capacity but
solely as Securities Adminsitrator on behalf of the Supplemental Interest Trust
with respect to the GSAA Home Equity Trust 2007-3 Asset-Backed Certificates,
Series 2007-3
By: ___________________
Name:
Title:
Annex I
Amortization Schedule
For all Calculation Periods The applicable USD
from and including**: to but excluding**: Notional Amount shall
-------------------- ------------------- ---------------------
be:
February 23, 2007 March 25, 2007 1,177,474,000.00
March 25, 2007 April 25, 2007 1,140,149,000.00
April 25, 2007 May 25, 2007 1,085,613,000.00
May 25, 2007 June 25, 2007 1,033,732,000.00
June 25, 2007 July 25, 2007 984,375,000.00
July 25, 2007 August 25, 2007 937,421,000.00
August 25, 2007 September 25, 2007 892,751,000.00
September 25, 2007 October 25, 2007 850,256,000.00
October 25, 2007 November 25, 2007 809,829,000.00
November 25, 2007 December 25, 2007 771,370,000.00
December 25, 2007 January 25, 2008 734,782,000.00
January 25, 2008 February 25, 2008 699,976,000.00
February 25, 2008 March 25, 2008 666,863,000.00
March 25, 2008 April 25, 2008 635,362,000.00
April 25, 2008 May 25, 2008 605,394,000.00
May 25, 2008 June 25, 2008 576,885,000.00
June 25, 2008 July 25, 2008 549,764,000.00
July 25, 2008 August 25, 2008 523,962,000.00
August 25, 2008 September 25, 2008 499,417,000.00
September 25, 2008 October 25, 2008 476,066,000.00
October 25, 2008 November 25, 2008 453,852,000.00
November 25, 2008 December 25, 2008 432,719,000.00
December 25, 2008 January 25, 2009 412,615,000.00
January 25, 2009 February 25, 2009 393,489,000.00
February 25, 2009 March 25, 2009 375,294,000.00
March 25, 2009 April 25, 2009 357,986,000.00
April 25, 2009 May 25, 2009 341,519,000.00
May 25, 2009 June 25, 2009 325,854,000.00
June 25, 2009 July 25, 2009 309,426,000.00
July 25, 2009 August 25, 2009 293,626,000.00
August 25, 2009 September 25, 2009 278,594,000.00
September 25, 2009 October 25, 2009 264,294,000.00
October 25, 2009 November 25, 2009 250,691,000.00
November 25, 2009 December 25, 2009 237,749,000.00
December 25, 2009 January 25, 2010 225,438,000.00
January 25, 2010 February 25, 2010 213,726,000.00
February 25, 2010 March 25, 2010 202,584,000.00
March 25, 2010 April 25, 2010 200,516,000.00
April 25, 2010 May 25, 2010 190,432,000.00
May 25, 2010 June 25, 2010 180,840,000.00
June 25, 2010 July 25, 2010 171,714,000.00
July 25, 2010 August 25, 2010 163,033,000.00
August 25, 2010 September 25, 2010 154,774,000.00
September 25, 2010 October 25, 2010 146,918,000.00
October 25, 2010 November 25, 2010 139,444,000.00
November 25, 2010 December 25, 2010 132,334,000.00
December 25, 2010 January 25, 2011 125,570,000.00
January 25, 2011 February 25, 2011 119,135,000.00
February 25, 2011 March 25, 2011 113,013,000.00
March 25, 2011 April 25, 2011 107,190,000.00
April 25, 2011 May 25, 2011 101,650,000.00
May 25, 2011 June 25, 2011 96,380,000.00
June 25, 2011 July 25, 2011 91,366,000.00
July 25, 2011 August 25, 2011 86,597,000.00
August 25, 2011 September 25, 2011 82,060,000.00
September 25, 2011 October 25, 2011 77,744,000.00
October 25, 2011 November 25, 2011 73,637,000.00
November 25, 2011 December 25, 2011 69,731,000.00
December 25, 2011 January 25, 2012 66,014,000.00
January 25, 2012 February 25, 2012 62,479,000.00
**Subject to adjustment in accordance with the Modifed Following Business Day
Convention
