exv10w51






Exhibit 10.51




GUARANTEE AGREEMENT




     GUARANTEE AGREEMENT, originally dated as of November 28, 2008 (this “Agreement”), and
amended effective as of January 1, 2010, between The Goldman Sachs Group, Inc., a Delaware
corporation (the “Parent”), and Goldman Sachs Bank USA, a bank chartered under the Laws of
the State of New York (together with its predecessors, the “Bank”).



RECITALS:




     WHEREAS, in connection with the Parent becoming a bank holding company under the U.S. Bank
Holding Company Act of 1956, as amended, on September 21, 2008, Goldman Sachs Capital Markets,
L.P., a limited partnership organized under the laws of the State of New York, was merged with and
into The Goldman Sachs Trust Company, a limited-purpose trust chartered under the Laws of the State
of New York (“GS Trust”), then Goldman Sachs Capital Markets L.L.C., a Delaware limited
liability company, was merged with and into GS Trust, and then Goldman Sachs Bank USA, an
industrial bank chartered under the Laws of the State of Utah, was merged with and into GS Trust,
in each case with GS Trust as the surviving entity (collectively, the “Merger”);



     WHEREAS, upon consummation of the Merger, GS Trust changed its name to Goldman Sachs Bank USA
and received approval to become a member bank of the Federal Reserve System (the “Federal
Reserve System”) and to expand its banking powers;



     WHEREAS, the Bank is a wholly owned subsidiary of the Parent;



     WHEREAS, in connection with the restructuring described above, the Board of Governors of the
Federal Reserve System (the “Federal Reserve Board”) has provided guidance to the Bank via
teleconference and in a written summary, issued October 10, 2008, that sets forth the principal
terms of the exemption that it has granted to the Bank from the provisions of Section 23A of the
Federal Reserve Act, as amended (the “Section 23A Exemption”), to permit the Parent or
another Affiliate to transfer certain assets to the Bank without complying with the provisions of
Regulation W that would otherwise apply to such transfers (such assets, as further defined below,
the “Transferred Assets”), and indicated that it would provide to the Bank a formal written
statement of all the terms of the Section 23A Exemption in due course;



     WHEREAS, as a further condition to granting the Section 23A Exemption, the Federal Reserve
Board has imposed the requirement that the Parent provide certain guarantees in respect of the
Transferred Assets, and the Parent has agreed to provide such guarantees (collectively, the
“Guarantee”);



     WHEREAS, this Agreement is intended to satisfy that condition; and



     WHEREAS, upon receipt by the Bank of the final written statement of the terms of the Section
23A Exemption, the parties hereto intended to amend this Agreement and the Collateral Agreement (as
defined below), as necessary, to reflect the terms of such Section 23A Exemption;



     WHEREAS, by letter dated April 22, 2009, the Federal Reserve Board provided the above
described formal written statement describing the terms of the Section 23A Exemption, and the
parties hereby amend the terms of this Agreement to reflect the terms of such Section 23A Exemption
and consultations with the Federal Reserve Board;



     NOW, THEREFORE, in consideration of the foregoing premises, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement, intending to be legally bound, hereby agree as follows:



 









 





     1. Definitions; Interpretation.



     (a) The following terms have the following meanings:




     “Action” means any claim, action, suit, arbitration or proceeding by or before
any Governmental Authority or arbitral body.




     “Affiliate” means any “affiliate” of the Bank, as defined in Regulation W.




     “Agreement” has the meaning given to that term in the Preamble.




     “Bank” has the meaning given to that term in the Preamble.




     “Bank Subsidiary” means any Subsidiary of the Bank.




     “Business Day” means any day that (x) is not a Saturday, a Sunday or other day
on which commercial banks in The City of New York, State of New York, are required or
authorized by Law to be closed and (y) is a day on which the New York Stock Exchange, Inc.
is open for trading during its regular trading session (notwithstanding its closing prior to
its scheduled closing time).




     “Collateral Agreement” means the Collateral Agreement, dated as of November 28,
2008, between the Bank and the Parent and certain of its Subsidiaries from time to time.




     “Credit-Related Losses” means any losses (any such loss to be calculated as the
difference, if negative, between the Original Transfer Value of such Transferred Asset and
its sale price) incurred upon the sale of any Transferred Assets by the Bank or any Bank
Subsidiary to any party other than the Bank or any other Bank Subsidiary, except to the
extent that the Bank determines, by reference to credit spreads applicable to the relevant
obligor and using the valuation methods used in the Bank’s market and risk management
activities, that such losses do not arise from any deterioration in the creditworthiness of
any obligor in respect of such Transferred Asset.




     “Derivatives” means any swaps, options, futures, forwards, and other assets
arising from similar transactions.




     “Federal Reserve Board” has the meaning given to that term in the Recitals.




     “Federal Reserve System” has the meaning given to that term in the Recitals.




     “Governmental Authority” means any domestic or foreign governmental or
regulatory authority, agency, commission, body, court or other legislative, executive or
judicial governmental entity.




     “GS Trust” has the meaning given to that term in the Recitals.




     “Guarantee” has the meaning given to that term in the Recitals.




     “Law” means any federal, state, local or foreign law, statute or ordinance, or
any rule, regulation, standard or agency requirement, of any Governmental Authority.




     “Low-Quality Asset” has the meaning specified in Regulation W.




     “Merger” has the meaning given to that term in the Recitals.




     “Mortgage Servicing Rights” means the right to service a mortgage and collect a
fee.



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     “Non-Bank Subsidiary” means any Subsidiary of the Parent other than the Bank or
any Bank Subsidiary.




     “Original Transfer Value” means, with respect to any Transferred Asset, (x) if
that Transferred Asset was purchased by the Bank or any Bank Subsidiary from the Parent or
any Non-Bank Subsidiary, the purchase price paid by the Bank or such Bank Subsidiary for
such Transferred Asset, and (y) if that Transferred Asset was contributed to the Bank or any
Bank Subsidiary by the Parent or any Non-Bank Subsidiary, either directly or by contributing
the equity of or other interests in any Person that owns such Transferred Asset to the Bank
or any Bank Subsidiary, the fair value of the Transferred Asset as of the date initially
recognized by the Bank.




     “Parent” has the meaning given to that term in the Preamble.




     “Person” means a natural person, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or Governmental
Authority.




     “Regulation W” means the Federal Reserve regulation pursuant to Section 23A
codified at 12 C.F.R. Part 223.




     “Section 23A Exemption” has the meaning given to that term in the Recitals.




     “Servicing Advances” means a payment of funds by the Bank, as servicer of a
mortgage pursuant to any Transferred Mortgage Servicing Rights, for the purpose of
preserving collateral or enforcing rights.




     “Subsidiary” has the meaning given to that term in Regulation W.




     “Termination Date” means, with respect to any Transferred Asset, the earlier of
(x) the date on which all amounts due under or in respect of such Transferred Asset have
been paid in full, and (y) the date on which such Transferred Asset is sold by the Bank or
any Bank Subsidiary to any Person other than the Bank or any other Bank Subsidiary;
provided, however, that the Termination Date with respect to any Transferred Derivative
shall be the fifth anniversary of the date on which such Transferred Derivative was
transferred by the Parent or any Non-Bank Subsidiary to the Bank or any Bank Subsidiary.




     “Transferred Assets” has the meaning given to that term in the Recitals;
provided, however, that for the avoidance of doubt, “Transferred Assets” shall not
include any loans that are held by any Bank Subsidiary in which a participation has been
granted pursuant to the Master Participation Agreement entered into by certain Bank
Subsidiaries and certain Non-Bank Subsidiaries in connection with the Mergers.




     “Transferred Derivatives” means any Transferred Assets that are Derivatives.




     “Transferred Mortgage Servicing Rights” means any Transferred Assets that are
Mortgage Servicing Rights.



     (b) In interpreting this Agreement:




     (i) words in the singular shall include the plural and vice versa, and words of one
gender shall include the other gender as the context requires;




     (ii) references to Articles, Sections, paragraphs, Exhibits, Annexes and Schedules are
references to the Articles, Sections and paragraphs of, and Exhibits, Annexes and Schedules
to, this Agreement unless otherwise specified;




     (iii) references to “$” shall mean U.S. dollars;



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     (iv) the words “includes” and “including” and words of similar import
shall be deemed to be followed by the words “without limitation” unless otherwise
specified;




     (v) the word “or” shall not be exclusive;




     (vi) the words “herein”, “hereof” and “hereunder”, and similar
terms, are to be deemed to refer to this Agreement as a whole and not to any specific
section;




     (vii) the headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement;




     (viii) this Agreement shall be construed without regard to any presumption or rule
requiring construction or interpretation against the party drafting or causing any
instrument to be drafted;




     (ix) if a word or phrase is defined, the other grammatical forms of such word or phrase
have a corresponding meaning; and




     (x) references to any statute, listing rule, rule, standard, regulation or other law
(a) include a reference to the corresponding rules and regulations and (b) include a
reference to each of them as amended, modified, supplemented, consolidated, replaced or
rewritten from time to time; and




     (xi) references to any section of any statute, listing rule, rule, standard, regulation
or other law include any successor to such section.



     2. Parent Guarantee.



     The Guarantee shall consist of the following commitments of the Parent:



     (a) Repurchase of Low-Quality Assets.




     (i) The Parent hereby irrevocably and unconditionally agrees to purchase or cause a
Non-Bank Subsidiary to purchase from the Bank or any Bank Subsidiary (A) any Transferred
Asset, other than any Transferred Derivative or Transferred Mortgage Servicing Right, that
becomes a Low-Quality Asset at any time subsequent to the transfer of such Transferred Asset
to the Bank or any Bank Subsidiary and prior to the Termination Date with respect to such
Transferred Asset, and (B) any Transferred Asset that the Federal Reserve Bank of New York
or the Federal Reserve Board may require the Parent to purchase in the discretion of the
staff of either the Federal Reserve Bank of New York or the Federal Reserve Board;




     (ii) The purchase price payable by the Parent or Non-Bank Subsidiary for any
Transferred Asset pursuant to this Section 2(a) shall be the Original Transfer Value of the
Transferred Asset.




     (iii) Any purchases required to be made pursuant to this Section 2(a) shall occur not
later than fifteen (15) days following the end of the calendar quarter (or otherwise as
promptly as practicable) in which the Transferred Asset became a Low-Quality Asset.



     (b) Reimbursement.




     (i) Credit-Related Losses.




     (A) The Parent hereby irrevocably and unconditionally agrees to reimburse the
Bank or any Bank Subsidiary for any Credit-Related Losses incurred by the Bank or
such Bank Subsidiary upon the sale of any Transferred Asset other than a Transferred
Derivative or a Transferred Mortgage Servicing Right to any Person other than the
Bank or any other Bank Subsidiary.



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     (B) The Parent shall pay all such reimbursements that it is required to pay to
the Bank pursuant to this Section 2(b)(i) no later than fifteen (15) days following
the end of the calendar quarter (or otherwise as promptly as practicable) in which
the sale was made.




     (ii) Derivatives.




     (A) The Parent hereby irrevocably and unconditionally agrees that, if the Bank
or any Bank Subsidiary downgrades the counterparty to any Transferred Derivative to
a seven or below in the Bank’s internal credit rating system in any calendar quarter
during the five years immediately following the transfer of the Transferred
Derivative from the Parent or any Non-Bank Subsidiary to the Bank or any Bank
Subsidiary, the Parent will pay to the Bank or such Bank Subsidiary an amount equal
to any change in the credit valuation adjustment (minus the value of any hedge or
offsets held by the Bank or such Bank Subsidiary) relating to such Transferred
Derivative from the time of such transfer to the time of the downgrade.




     (B) The Parent hereby further irrevocably and unconditionally agrees that, if
the counterparty to any Transferred Derivative defaults at any time during the five
years following the transfer of the Transferred Asset from Parent or any Non-Bank
Subsidiary to the Bank or any Bank Subsidiary, the Parent will pay the Bank or such
Bank Subsidiary an amount equal to the then-replacement cost of all of the Bank’s
or such Bank Subsidiary’s Transferred Derivative transactions with such
counterparty, net of proceeds from any liquidation of collateral applied by the
Bank or such Bank Subsidiary to the obligations of such counterparty under any such
Transferred Derivatives and any amounts recovered from the defaulting counterparty.




     (C) In calculating the Parent’s payment obligations upon a counterparty
default, as set forth in Section 2(b)(ii)(B), the Parent may reduce such
obligations:




	 	(I)	 	by the amount of any previous
payment made by the Parent to the Bank or any Bank Subsidiary as
a result of an internal rating downgrade of the applicable
counterparty pursuant to Section 2(b)(ii)(A);
	 
	 	(II)	 	to the extent that the Bank or any
Bank Subsidiary has received payment under any hedge or other
credit loss protection arrangement put in place with respect to
such Transferred Derivative (i) prior to the time at which such
Transferred Derivative was transferred to the Bank or any Bank
Subsidiary or (ii) after the time at which such Transferred
Derivative was transferred to the Bank or any Bank Subsidiary, if
the cost of such hedge or other credit loss protection
arrangement was paid by the Parent or any Non-Bank Subsidiary.






In addition, to the extent that, after the time at which the Parent has made such a
payment to the Bank, the Bank receives payment under a hedge or other credit loss
protection arrangement meeting the criteria set forth in (i) or (ii) of the
foregoing clause (II) or otherwise receives payment from the defaulting
counterparty, the Bank or the relevant Bank Subsidiary shall reimburse the Parent
for any such payment so received by it.




     (D) The Parent shall pay all such reimbursements that it is required to pay to
the Bank or any Bank Subsidiary pursuant to Section 2(b)(ii) no later than fifteen
(15) days following the end of the calendar quarter (or otherwise as promptly as
practicable) in which the derivatives counterparty is downgraded by the Bank or
such Bank Subsidiary or defaults, as applicable.



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     (E) As an alternative to the Parent making any payment that would otherwise be
required pursuant to this Section 2(b)(ii), the Parent may, at its option, (I)
repurchase by way of assignment, novation, participation or total return swap the
Transferred Derivative in respect of which the Parent would be required to make
such payment for an amount equal to the Original Transfer Value of such Transferred
Derivative or (II) to the extent permitted under the Federal Reserve Board’s final
written statement of the terms of the Section 23A Exemption, post collateral of the
type set forth in Section 223.42(c)(1) of Regulation W with respect to any
Transferred Derivative in an amount equal to the then-current replacement cost of
all the Bank’s derivative transactions with the relevant counterparty minus the
value of any collateral held and/or the mark-to-market value notional amount of any
credit loss protection owned by the Bank, which collateral would be returned to the
Parent upon the expiration of the Transferred Derivative.




     (iii) Mortgage Servicing Rights.




     (A) The Parent hereby irrevocably and unconditionally agrees to reimburse the
Bank or any Bank Subsidiary an amount equal to any impairment recognized or direct
write-downs related to any Transferred Mortgage Servicing Rights or related
Servicing Advances.




     (B) The Parent shall pay all such reimbursements that it is required to pay to
the Bank pursuant to this Section 2(b)(iii) no later than thirty (30) days
following the end of the calendar quarter in which the impairment was recognized or
the write-down taken.




     (C) The Bank will hold an amount of risk-based capital equal to the impairment
recognized or direct write-down taken on any Transferred Mortgage Servicing Rights
or related Servicing Advances so long as the Bank retains ownership or control of
such Transferred Mortgage Servicing Rights or Servicing Advances, in lieu of the
risk-based capital that would otherwise apply to a similar asset that is not a
Transferred Mortgage Servicing Right or related Servicing Advance.




     (D) As an alternative to the Parent making any payment that would otherwise be
required pursuant to this Section 2(b)(iii) and the maintenance of capital by the
Bank in accordance with Section 2(b)(iii)(C), the Parent may, at its option,
purchase the applicable Transferred Mortgage Servicing Rights and Servicing
Advances at an amount equal to the Original Transfer Value of such Transferred
Mortgage Servicing Rights or Servicing Advances, as applicable.




     (E) In calculating the Parent’s payment obligations pursuant to this Section
2(b)(iii), the Parent may reduce such obligations to the extent that the Bank or
any Bank Subsidiary has received payment under any hedge or other credit loss
protection arrangement put in place with respect to such Transferred Mortgage
Servicing Rights or Servicing Advances, as applicable, (i) prior to the time at
which such Transferred Mortgage Servicing Rights or Servicing Advances, as
applicable, was transferred to the Bank or any Bank Subsidiary or (ii) after the
time at which such Transferred Mortgage Servicing Rights or Servicing Advances, as
applicable, was transferred to the Bank or any Bank Subsidiary, if the cost of such
hedge or other credit loss protection arrangement was paid by the Parent or any
Affiliate of the Parent other than the Bank or any Bank Subsidiary.



     3. Collateral.



     The Parent shall secure its obligations pursuant to this Agreement as set forth in the
Collateral Agreement.



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     4. Termination.



     This Agreement shall terminate on the Business Day after the Termination Date of the last
Transferred Asset held by the Bank or any Bank Subsidiary.



     5. Notices.



     Unless otherwise provided herein, all notices and other communications provided to either
party under this Agreement shall be in writing and addressed to such party at its address as set
forth below. Unless otherwise provided herein, any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given three (3) Business Days after being sent; if hand delivered,
shall be deemed given on the date of such delivery; and if delivered by overnight courier, shall be
deemed given on the date of such delivery.


If to the Parent:

The Goldman Sachs Group, Inc.

200 West Street

New York, New York 10282-2198

Telephone: (212) 902-1000

Attention: Treasury



If to the Bank:

Goldman Sachs Bank USA

85 Broad Street

New York, New York 10004

Telephone: (212) 902-1000

Attention: General Counsel



or if on or after January 25, 2010,



Goldman Sachs Bank USA

200 West Street

New York, New York 10282-2198

Telephone: (212) 902-1000

Attention: General Counsel




     6. Severability.



     If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced under any Law or as a matter of public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party to this Agreement. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties to this Agreement shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in a mutually acceptable manner in order that the transactions contemplated
by this Agreement be consummated as originally contemplated to the greatest extent possible.



     7. Entire Agreement.



     This Agreement, together with the Collateral Agreement, constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement and supersedes all prior
agreements and undertakings, both written and oral.



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     8. Assignment.



     This Agreement may not be assigned, in whole or in part, by either party, by operation of Law
or otherwise, without the express written agreement of the other party hereto. Any attempted
assignment in violation of this Section 8 shall be void, except that each party shall have the
right to assign all of its rights and obligations to any entity that succeeds, directly or
indirectly, to substantially all of such party’s assets by merger or otherwise. This Agreement
shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties
hereto and their permitted successors and assigns.



     9. Amendment or Modification.



     This Agreement may be amended or modified only by an agreement in writing executed by both of
the parties hereto; provided that the parties hereto agree that, upon receipt by the Bank of the
final written statement of the terms of the Section 23A Exemption, they shall amend this Agreement
as necessary to reflect the terms and conditions contained in such statement.



     10. No Third-Party Beneficiaries.



     This Agreement is for the sole benefit of the parties to this Agreement and their permitted
successors and assigns and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person or party any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.



     11. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.



     (a) This Agreement shall in all respects be governed by, and construed in accordance with, the
Laws of the State of New York.



     (b) Each of the Parent and the Bank irrevocably and unconditionally:




     (i) submits for itself and its property in any Action arising out of or relating to the
interpretation and enforcement of the provisions of this Agreement and of the documents
referred to in this Agreement and in respect of the transactions contemplated by this
Agreement, to the exclusive jurisdiction of the Courts of the State of New York sitting in
the County of New York, the United States District Court for the Southern District of New
York, and appellate courts having jurisdiction of appeals from any of the foregoing, and
agrees that all claims in respect of any such Action shall be heard and determined in such
New York State court or, to the extent permitted by Law, in such federal court;




     (ii) consents that any such Action may and shall be brought in such courts and waives
any objection that it may now or hereafter have to the venue or jurisdiction of any such
Action in any such court or that such Action was brought in an inconvenient court and agrees
not to assert, plead or claim the same;




     (iii) agrees that service of process in any such Action may be effected by mailing a
copy of such process by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such party at its address as provided in Section 5; and




     (iv) agrees that nothing in this Agreement shall affect the right to effect service of
process in any other manner permitted by the Laws of the State of New York.



     (c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.



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     12. Counterparts.



     This Agreement may be executed in one or more counterparts, and by the different parties to
each such agreement in separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Agreement by facsimile or in Portable Document
File (PDF) format shall be as effective as delivery of a manually executed counterpart of this
Agreement.



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     IN
WITNESS WHEREOF, the parties hereto have executed this Guarantee Agreement as of the date
set forth below.



Date:
February 18, 2010
                         




	 	 	 	 	 	 	 
	 	 	PARENT:


THE GOLDMAN SACHS GROUP, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Elizabeth Beshel	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 Elizabeth Beshel	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 Treasurer	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK:


GOLDMAN SACHS BANK USA	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Stephen Davies	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 Stephen Davies	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 Chief Financial Officer	 	 
	 

	 	 	 	 	 	 





Guarantee Agreement