GENERAL GUARANTEE
AGREEMENT
This General
Guarantee Agreement, dated November 24, 2008 (this
“Guarantee”), is made by The Goldman Sachs Group, Inc.
(the “Guarantor”), a corporation duly organized under
the laws of the State of Delaware, in favor of each person (each, a
“Party”) to whom Goldman Sachs Bank (Europe) PLC, a
public company with limited liability incorporated in Ireland and a
subsidiary of the Guarantor (the “Company”), may owe
any Obligations (as defined below) from time to time. In this
Guarantee, the “Company” shall also mean any banking
subsidiary of the Guarantor, whether now existing or hereafter
formed, that succeeds to the business of Goldman Sachs Bank
(Europe) PLC.
1.
Guarantee . For value received, the Guarantor hereby
unconditionally and, subject to the provisions of paragraphs number
six and seven, irrevocably guarantees to each Party, the complete
payment when due, whether by acceleration or otherwise, of all
payment obligations, whether now in existence or hereafter arising
(other than non-recourse payment obligations) of the Company,
including, without limitation, all payment obligations (other than
non-recourse payment obligations) in connection with any deposit,
loan, letter of credit or similar borrowing or lending obligation
or arising under any swap, futures, option, forward or other
derivative instrument (the “Obligations”). This
Guarantee is one of payment and not of collection.
2.
Waiver of Notice, etc . Except as may be required by the
contract, agreement or instrument creating the Obligations, the
Guarantor hereby waives notice of acceptance of this Guarantee and
notice of the Obligations, and waives proof of reliance, diligence,
presentment, demand for payment, protest, notice of dishonor or
non-payment of the Obligations, suit, and the taking of any other
action by any Party against, and any other notice to, the Company,
the Guarantor or others.
3.
Nature of Guarantee . This Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without
regard to (a) the validity or enforceability of any Obligation
or right of offset with respect thereto at any time and from time
to time held by any Party or (b) any other circumstance
whatsoever (with or without notice to or knowledge of the Company
or the Guarantor) which might constitute an equitable or legal
discharge of the Company for the Obligations, or of the Guarantor
under this Guarantee, in bankruptcy, insolvency, dissolution,
examinership, reorganization or in any other instance;
provided , however , that under no circumstances will
the Guarantor be liable to any Party hereunder for any amount in
excess of the amount which the Company actually owes to such Party
and that the Guarantor may
assert any
defense to payment available to the Company, other t
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