<PAGE> 1
REGISTRATION NO. 333-75321
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE GOLDMAN SACHS GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
DELAWARE 6211 13-4019460
<S> <C> <C>
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
85 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 902-1000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
ROBERT J. KATZ
GREGORY K. PALM
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 902-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
RICARDO A. MESTRES, JR.
JOHN P. MEAD
DAVID P. HARMS
ROBERT W. REEDER III
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO
THE PUBLIC: As soon as practicable after the
effective date of this Registration Statement.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [X] Registration No. 333-75321.
If the delivery of the prospectus is expected to be made pursuant to
Rule 434 under the Securities Act, check the following box. [ ]
<PAGE> 2
EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to the Registration Statement on Form S-1
(File No. 333-75321) of The Goldman Sachs Group, Inc. (the "Registration
Statement") is being filed pursuant to Rule 462(d) under the Securities Act of
1933, as amended, for the sole purpose of filing additional exhibits to the
Registration Statement and, accordingly, shall become effective immediately upon
filing with the Securities and Exchange Commission. The contents of the
Registration Statement are hereby incorporated herein by reference.
<PAGE> 3
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS
1.1 Form of Distribution Agreement.***
1.2 Terms Agreement, dated September 22, 1999, relating to the
7.35% Notes due 2009.
2.1 Plan of Incorporation.**
2.2 Agreement and Plan of Merger of The Goldman Sachs Corporation
into The Goldman Sachs Group, Inc.*
2.3 Agreement and Plan of Merger of The Goldman Sachs Group, L.P.
into The Goldman Sachs Group, Inc.*
3.1 Certificate of Incorporation of The Goldman Sachs Group,
Inc.**
3.2 Amended and Restated Certificate of Incorporation of The
Goldman Sachs Group, Inc.*
3.3 Amended and Restated By-Laws of The Goldman Sachs Group, Inc.*
4.1 Form of Indenture between The Goldman Sachs Group, Inc. and
The Bank of New York.***
4.2 Form of debt securities of The Goldman Sachs Group, Inc.
(included in Exhibit 4.1 )***
4.3 Form of Floating Rate Medium-Term Note.***
4.4 Form of Fixed Rate Medium-Term Note.***
4.5 Form of Mandatory Exchangeable Note.***
4.6 Form of Exchangeable Note.***
4.7 Specimen of 7.35% Note due 2009.
5.1 Opinion of Gregory K. Palm, Esq., a General Counsel of The
Goldman Sachs Group, Inc.***
8.1 Opinion of Sullivan & Cromwell, United States tax counsel to
The Goldman Sachs Group, Inc., re tax matters.***
8.2 Opinion of Sullivan & Cromwell, United States tax counsel to
The Goldman Sachs Group, Inc., re tax matters.
10.1 Lease, dated June 11, 1985, between Metropolitan Life
Insurance Company and Goldman, Sachs & Co.**
10.2 Lease, dated April 5,1994, between The Chase Manhattan Bank
(National Association) and The Goldman Sachs Group, L.P., as
amended.**
10.3 Lease, dated as of August 22, 1997, between Ten Hanover LLC
and The Goldman Sachs Group, L.P.**
10.4 Lease, dated as of July 16, 1998, between TCC Acquisition
Corp. and The Goldman Sachs Group, L.P.**
10.5 Agreement for Lease, dated April 2, 1998, among (i) JC No. 3
(UK) Limited and Fleet Street Square Management Limited
trading as Fleet Street Partnership, (ii) Goldman Sachs
International, (iii) Restamove Limited, (iv) The Goldman Sachs
Group, L.P. and (v) Itochu Corporation.**
II-1
<PAGE> 4
10.6 Annexure 1 to Agreement for Lease, dated April 2, 1998, among (i) JC
No. 3 (UK) Limited and Fleet Street Square Management Limited trading
as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu
Corporation (Form of Occupational Lease among (i) JC No. 3 (UK) Limited
and Fleet Street Square Management Limited trading as Fleet Street
Partnership, (ii) Goldman Sachs International and (iii) The Goldman
Sachs Group, L.P.).**
10.7 Agreement relating to Developer's Fit Out Works to be carried out at
120 Fleet Street, London, dated April 2, 1998, among (i) JC No. 3 (UK)
Limited and Fleet Street Square Management Limited, (ii) Goldman Sachs
Property Management, (iii) Itochu Corporation and (iv) The Goldman
Sachs Group, L.P.**
10.8 Agreement relating to One Carter Lane, London EC4, dated March 25,
1998, among Britel Fund Trustees Limited, Goldman Sachs International,
The Goldman Sachs Group, L.P., English Property Corporation plc and
MEPC plc.**
10.9 Fit Out Works Agreement relating to One Carter Lane, London EC4, dated
March 25, 1998, among Britel Fund Trustees Limited, Goldman Sachs
International, Goldman Sachs Property Management, The Goldman Sachs
Group, L.P., English Property Corporation plc and MEPC plc.**
10.10 Underlease of premises known as One Carter Lane, London EC4, dated
September 9, 1998, among Britel Fund Trustees Limited, Goldman Sachs
International and The Goldman Sachs Group, L.P.**
10.11 Lease, dated March 5, 1994, among Shine Hill Development Limited, Shine
Belt Limited, Fair Page Limited, Panhy Limited, Maple Court Limited and
Goldman Sachs (Asia) Finance, as amended.**
10.12 Guarantee, dated November 17, 1993, between Shine Hill Development
Limited and The Goldman Sachs Group, L.P.**
10.13 Agreement for Lease, dated November 29, 1998, between Turbo Top Limited
and Goldman Sachs (Asia) Finance.**
10.14 Summary of Tokyo Leases.**
10.15 The Goldman Sachs 1999 Stock Incentive Plan.*
10.16 The Goldman Sachs Defined Contribution Plan.*
10.17 Letter Agreement with Mr. Weinberg.**
10.18 The Goldman Sachs Partner Compensation Plan.*
10.19 Form of Employment Agreement.*
10.20 Form of Agreement Relating to Noncompetition and Other Covenants.*
10.21 Form of Pledge Agreement.*
10.22 Form of Award Agreement (Formula RSUs).*
10.23 Form of Award Agreement (Discretionary RSUs).*
10.24 Form of Option Agreement (Discretionary RSUs).*
II-2
<PAGE> 5
10.25 Tax Indemnification Agreement, by and among The Goldman Sachs Group,
Inc. and various parties.*
10.26 Form of Shareholders' Agreement among The Goldman Sachs Group, Inc. and
various parties.*
10.27 Instrument of Indemnification.*
10.28 Form of Indemnification Agreement.*
10.29 Subscription Agreement, dated as of April 24, 1992, among the Trustees
of the Estate of Bernice Pauahi Bishop, Pauahi Holdings Corporation,
Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs Group,
L.P.**
10.30 Subscription Agreement, dated as of November 21, 1994, among the
Trustees of the Estate of Bernice Pauahi Bishop, Pauahi Holdings
Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs
Group, L.P.**
10.31 Letter Agreement, dated March 15, 1999, among Kamehameha Activities
Association and The Goldman Sachs Group, L.P. (the "Kamehameha Letter
Agreement").**
10.32 Amended and Restated Subscription Agreement, dated as of March 28,
1989, among The Sumitomo Bank, Limited, Sumitomo Bank Capital Markets,
Inc., Goldman, Sachs & Co. and The Goldman Sachs Group, L.P.**
10.33 Letter Agreement, dated March 15, 1999, among The Sumitomo Bank,
Limited, Sumitomo Bank Capital Markets, Inc. and The Goldman Sachs
Group, L.P. (the "Sumitomo Letter Agreement").**
10.34 Lease, dated September 24, 1992, from LDT Partners to Goldman Sachs
International.**
10.35 Amendment to Kamehameha Letter Agreement (filed as Exhibit 10.31),
dated April 30, 1999, among Kamehameha Activities Association, the
Trustees of the Estate of Bernice Pauahi Bishop, The Goldman Sachs
Group, L.P. and The Goldman Sachs Group, Inc.*
10.36 Amendment to Sumitomo Letter Agreement (filed as Exhibit 10.33), dated
April 30, 1999, among The Sumitomo Bank, Limited, Sumitomo Bank Capital
Markets, Inc., The Goldman Sachs Group, L.P., The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co.*
10.37 Voting Agreement, dated as of April 30, 1999, by and among The Goldman
Sachs Group, Inc., on the one hand, and The Trustees of the Estate of
Bernice Pauahi Bishop and Kamehameha Activities Association, on the
other hand.*
10.38 Voting Agreement, dated as of April 30, 1999, by and among The Goldman
Sachs Group, Inc., on the one hand, and The Sumitomo Bank, Limited, and
Sumitomo Bank Capital Markets, Inc., on the other hand.*
12.1 Statement re computation of ratios of earnings to fixed charges.***
15.1 Letter re Unaudited Interim Financial Information.***
21.1 List of subsidiaries of The Goldman Sachs Group, L.P.**
23.1 Consent of PricewaterhouseCoopers LLP.***
II-3
<PAGE> 6
23.2 Consent of Gregory K. Palm, Esq. (included in Exhibit 5.1 above).***
23.3 Consent of Sullivan & Cromwell (included in Exhibit 8.1 above).***
23.4 Consent of Securities Data Company.***
23.5 Consent of Sullivan & Cromwell (included in Exhibit 8.2 above).
24.1 Powers of Attorney.***
25.1 Statement of Eligibility of Trustee.***
27.1 Financial Data Schedule.***
- ------------
* Incorporated herein by reference to the corresponding exhibit to the
registrant's registration statement on Form S-1 (No. 333-75213).
** Incorporated herein by reference to the corresponding exhibit to the
registrant's registration statement on Form S-1 (No. 333-74449).
*** Previously filed.
II-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Post-Effective Amendment No. 2 to the
registration statement (No. 333-75321) to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, New York on the
4th day of October, 1999.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Gregory K. Palm
-----------------------------
Name: Gregory K. Palm
Title: General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 to the registration statement (No. 333-75321) has
been signed by the following persons in the capacities indicated on the 4th day
of October, 1999:
<TABLE>
<CAPTION>
TITLE SIGNATURE
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<S> <C>
Director, Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer) *
---------------------
Henry M. Paulson, Jr.
Director and Vice Chairman *
---------------------
Robert J. Hurst
Director, President and Co-Chief Operating
Officer *
---------------------
John A. Thain
Director, President and Co-Chief Operating
Officer *
---------------------
John L. Thornton
Director
---------------------
Sir John Browne
Director
---------------------
James A. Johnson
Director *
---------------------
John L. Weinberg
Chief Financial Officer
(Principal Financial Officer) *
---------------------
David A. Viniar
Principal Accounting Officer *
---------------------
Sarah G. Smith
</TABLE>
II-5
<PAGE> 8
*By: /s/ Gregory K. Palm
----------------------------
Name: Gregory K. Palm
Attorney-in-Fact
II-6
<PAGE> 9
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
1.1 Form of Distribution Agreement.***
1.2 Terms Agreement, dated September 22, 1999, relating
to the 7.35% Notes due 2009.
2.1 Plan of Incorporation.**
2.2 Agreement and Plan of Merger of The Goldman Sachs Corporation into The Goldman Sachs Group, Inc.*
2.3 Agreement and Plan of Merger of The Goldman Sachs Group, L.P. into The Goldman Sachs Group, Inc.*
3.1 Certificate of Incorporation of The Goldman Sachs Group, Inc.**
3.2 Amended and Restated Certificate of Incorporation of The Goldman Sachs Group, Inc.*
3.3 Amended and Restated By-Laws of The Goldman Sachs Group, Inc.*
4.1 Form of Indenture between The Goldman Sachs Group, Inc. and The Bank of New York.***
4.2 Form of debt securities of The Goldman Sachs Group, Inc. (included in Exhibit 4.1).***
4.3 Form of Floating Rate Medium-Term Note.***
4.4 Form of Fixed Rate Medium-Term Note.***
4.5 Form of Mandatory Exchangeable Note.***
4.6 Form of Exchangeable Note.***
4.7 Specimen of 7.35% Note due 2009.
5.1 Opinion of Gregory K. Palm, Esq., a General Counsel of The Goldman Sachs Group, Inc.***
8.1 Opinion of Sullivan & Cromwell, United States tax counsel to The Goldman Sachs Group, Inc., re
tax matters.***
8.2 Opinion of Sullivan & Cromwell, United States tax counsel to The Goldman Sachs Group, Inc., re
tax matters.***
10.1 Lease, dated June 11, 1985, between Metropolitan Life Insurance Company and Goldman, Sachs & Co.**
10.2 Lease, dated April 5, 1994, between The Chase Manhattan Bank (National Association) and The
Goldman Sachs Group, L.P., as amended.**
10.3 Lease, dated as of August 22, 1997, between Ten Hanover LLC and The Goldman Sachs Group, L.P.**
10.4 Lease, dated as of July 16, 1998, between TCC Acquisition Corp. and The Goldman Sachs Group,
L.P.**
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.5 Agreement for Lease, dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street Square
Management Limited trading as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu Corporation.**
10.6 Annexure 1 to Agreement for Lease, dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street
Square Management Limited trading as Fleet Street Partnership, (ii) Goldman Sachs International, (iii)
Restamove Limited, (iv) The Goldman Sachs Group, L.P. and (v) Itochu Corporation (Form of Occupational
Lease among (i) JC No. 3 (UK) Limited and Fleet Street Square Management Limited trading as Fleet Street
Partnership, (ii) Goldman Sachs International and (iii) The Goldman Sachs Group, L.P.).**
10.7 Agreement relating to Developer's Fit Out Works to be carried out at 120 Fleet Street, London,
dated April 2, 1998, among (i) JC No. 3 (UK) Limited and Fleet Street Square Management Limited,
(ii) Goldman Sachs Property Management, (iii) Itochu Corporation and (iv) The Goldman Sachs
Group, L.P.**
10.8 Agreement relating to One Carter Lane, London EC4, dated March 25, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International, The Goldman Sachs Group, L.P., English Property
Corporation plc and MEPC plc.**
10.9 Fit Out Works Agreement relating to One Carter Lane, London EC4, dated March 25, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International, Goldman Sachs Property Management, The Goldman Sachs Group,
L.P., English Property Corporation plc and MEPC plc.**
10.10 Underlease of premises known as One Carter Lane, London EC4, dated September 9, 1998, among Britel Fund
Trustees Limited, Goldman Sachs International and The Goldman Sachs Group, L.P.**
10.11 Lease, dated March 5, 1994, among Shine Hill Development Limited, Shine Belt Limited, Fair Page
Limited, Panhy Limited, Maple Court Limited and Goldman Sachs (Asia) Finance, as amended.**
10.12 Guarantee, dated November 17, 1993, between Shine Hill Development Limited and The Goldman Sachs
Group, L.P.**
10.13 Agreement for Lease, dated November 29, 1998, between Turbo Top Limited and Goldman Sachs (Asia)
Finance.**
10.14 Summary of Tokyo Leases.**
10.15 The Goldman Sachs 1999 Stock Incentive Plan.*
10.16 The Goldman Sachs Defined Contribution Plan.*
10.17 Letter Agreement with Mr. Weinberg.**
10.18 The Goldman Sachs Partner Compensation Plan.*
10.19 Form of Employment Agreement.*
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.20 Form of Agreement Relating to Noncompetition and Other Covenants.*
10.21 Form of Pledge Agreement.*
10.22 Form of Award Agreement. (Formula RSUs).*
10.23 Form of Award Agreement. (Discretionary RSUs).*
10.24 Form of Option Agreement. (Discretionary Options).*
10.25 Tax Indemnification Agreement, by and among The Goldman Sachs Group, Inc. and various parties.*
10.26 Form of Shareholders' Agreement among The Goldman Sachs Group, Inc. and various parties.*
10.27 Instrument of Indemnification.*
10.28 Form of Indemnification Agreement.*
10.29 Subscription Agreement, dated as of April 24, 1992, among the Trustees of the Estate of Bernice
Pauahi Bishop, Pauahi Holdings Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman
Sachs Group, L.P.**
10.30 Subscription Agreement, dated as of November 21, 1994, among the
Trustees of the Estate of Bernice Pauahi Bishop, Pauahi Holdings
Corporation, Royal Hawaiian Shopping Center, Inc. and The Goldman Sachs
Group, L.P.**
10.31 Letter Agreement, dated March 15, 1999, among Kamehameha Activities Association and The Goldman
Sachs Group, L.P. (the "Kamehameha Letter Agreement").**
10.32 Amended and Restated Subscription Agreement, dated as of March 28, 1989, among The Sumitomo Bank,
Limited, Sumitomo Bank Capital Markets, Inc., Goldman, Sachs & Co. and The Goldman Sachs Group,
L.P.**
10.33 Letter Agreement, dated March 15, 1999, among The Sumitomo Bank, Limited, Sumitomo Bank Capital
Markets, Inc. and The Goldman Sachs Group, L.P. (the "Sumitomo Letter Agreement"). **
10.34 Lease, dated September 24, 1992, from LDT Partners to Goldman Sachs International.**
10.35 Amendment to Kamehameha Letter Agreement (filed as Exhibit 10.31), dated April 30, 1999, among
Kamehameha Activities Association, the Trustees of the Estate of Bernice Pauahi Bishop, The
Goldman Sachs Group, L.P. and The Goldman Sachs Group, Inc.*
10.36 Amendment to Sumitomo Letter Agreement (filed as Exhibit 10.33), dated April 30, 1999, among The
Sumitomo Bank, Limited, Sumitomo Bank Capital Markets, Inc., The Goldman Sachs Group, L.P., The
Goldman Sachs Group, Inc. and Goldman, Sachs & Co.*
</TABLE>
<PAGE> 12
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
10.37 Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., on the
one hand, and The Trustees of the Estate of Bernice Pauahi Bishop and Kamehameha Activities
Association, on the other hand.*
10.38 Voting Agreement, dated as of April 30, 1999, by and among The Goldman Sachs Group, Inc., on the
one hand, and The Sumitomo Bank, Limited, and Sumitomo Bank Capital Markets, Inc., on the other
hand.*
12.1 Statement re computation of ratios of earnings to fixed charges.***
15.1 Letter re Unaudited Interim Financial Information.***
21.1 List of subsidiaries of The Goldman Sachs Group, L.P.**
23.1 Consent of PricewaterhouseCoopers LLP.***
23.2 Consent of Gregory K. Palm, Esq. (included in Exhibit 5.1 above).***
23.3 Consent of Sullivan & Cromwell (included in Exhibit 8.1 above).***
23.4 Consent of Securities Data Company.***
23.5 Consent of Sullivan & Cromwell (included in Exhibit 8.2 above).
24.1 Powers of Attorney.***
25.1 Statement of Eligibility of Trustee.***
27.1 Financial Data Schedule.***
</TABLE>
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* Incorporated herein by reference to the corresponding exhibit
to the registrant's registration statement on Form S-1 (No.
333-75213).
** Incorporated herein by reference to the corresponding exhibit
to the registrant's registration statement on Form S-1 (No.
333-74449).
*** Previously filed.
<PAGE> 1
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
7.35% NOTES DUE 2009
TERMS AGREEMENT
---------------
September 22, 1999
Goldman, Sachs & Co.
Banc of America Securities LLC
Chase Securities Inc.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
McDonald Investments Inc., A KeyCorp Company
Merrill Lynch, Pierce, Fenner & Smith Incorporated
PaineWebber Incorporated
Salomon Smith Barney Inc.
Muriel Siebert & Co., Inc.
Utendahl Capital Partners, L.P.
Wachovia Securities, Inc.,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
The Goldman Sachs Group, Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated May
19, 1999 (the "Distribution Agreement"), between the Company on the one hand and
Goldman, Sachs & Co. and any other party acting as Agent thereunder on the
other, to issue and sell to each of the Underwriters listed in the Schedule
hereto (the "Underwriters") the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the
<PAGE> 2
solicitation of offers to purchase Securities from the Company, solely by virtue
of its execution of this Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Terms Agreement, except that each representation and warranty in
Section 1 of the Distribution Agreement which makes reference to the Prospectus
shall be deemed to be a representation and warranty as of the date of the
Distribution Agreement in relation to the Prospectus (as therein defined), and
also a representation and warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to relate to the
Purchased Securities. All references in the Distribution Agreement (insofar as
they are relevant to this Terms Agreement) and in this Terms Agreement to the
"Prospectus as amended or supplemented" shall be deemed to mean the Prospectus,
dated May 18, 1999, as supplemented by Prospectus Supplement B, dated July 9,
1999, Prospectus Supplement C, dated September 21, 1999, and Prospectus
Supplement No. 41, dated September 22, 1999. All other capitalized and undefined
terms used herein have the meanings assigned to them in the Distribution
Agreement.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to Goldman, Sachs & Co. is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and the Underwriters agree severally
to purchase from the Company, the Purchased Securities, at the time and place,
in the principal amount and at the purchase price set forth in the Schedule
hereto.
-2-
<PAGE> 3
If the foregoing is in accordance with your understanding, please sign
and return to us 5 counterparts hereof, and upon acceptance hereof by Goldman,
Sachs & Co., on behalf of each of the Underwriters, this letter and such
acceptance hereof, including those provisions of the Distribution Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that Goldman, Sachs &
Co.'s acceptance of this letter on behalf of each of the Underwriters is or will
be pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on the part of Goldman, Sachs &
Co. as to the authority of the signers hereof.
Very truly yours,
The Goldman Sachs Group, Inc.
By: /s/ Dan H. Jester
-----------------------------------
Name: Dan H. Jester
Title: Vice President and Treasurer
Accepted in New York, New York,
as of the date hereof:
/s/ Goldman, Sachs & Co.
----------------------------------
(Goldman, Sachs & Co.)
On behalf of each Underwriter
-3-
<PAGE> 4
SCHEDULE I
Title of Purchased Securities:
Medium-Term Notes, Series B
7.35% Notes due 2009
Aggregate Principal Amount:
$ 1,000,000,000
Price to Public: 99.852%
Purchase Price by the Underwriters:
99.402% of the principal amount of the Purchased Securities, plus
accrued interest, if any, from September 29, 1999
Method of and Specified Funds for Payment of Purchase Price:
By wire transfer to a bank account specified by the Company in
immediately available funds
Indenture:
Indenture, dated as of May 19, 1999, between the Company and The Bank
of New York, as Trustee
Time of Delivery: September 29, 1999
Closing Location for Delivery of Securities:
125 Broad Street New York, New York 10004
Maturity:
October 1, 2009
Interest Rate:
7.35%
Interest Payment Dates:
Every April 1 and October 1
Redemption Provisions:
The Purchased Securities may be redeemed as a whole at 100% of their
principal amount, together with accrued interest to the redemption date, at the
option of the Company upon not less than 30 nor more than 60 days' notice, upon
a change in United States laws or regulations affecting taxation which causes
the Company to be obligated to pay additional amounts to United States alien
holders in respect of the Purchased Securities.
Obligation to Make Additional Payments:
The Company will pay to United States alien holders such additional
amounts so that every net payment on the Purchased Securities, after deduction
of withholding for or on account of any present or future tax, assessment or
other governmental charge imposed by the United States or any political
subdivision or taxing authority thereof or therein, will not be less than the
amount provided for in the Purchased Securities.
Documents to be Delivered:
I-1
<PAGE> 5
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).
(2) The opinion of counsel to the Company referred to in Section 4(i).
(3) The accountants' letter referred to in Section 4(j).
(4) The officers' certificate referred to in Section 4(k).
Underwriters:
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
<S> <C>
Goldman, Sachs & Co. $ 793,750,000
Banc of America Securities LLC 18,750,000
Chase Securities Inc. 18,750,000
Deutsche Bank Securities Inc. 18,750,000
Donaldson, Lufkin & Jenrette Securities Corporation 18,750,000
McDonald Investments Inc., A KeyCorp Company 18,750,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 18,750,000
PaineWebber Incorporated 18,750,000
Salomon Smith Barney Inc. 18,750,000
Muriel Siebert & Co., Inc. 18,750,000
Utendahl Capital Partners, L.P. 18,750,000
Wachovia Securities, Inc. 18,750,000
Total $1,000,000,000
==============
</TABLE>
I-2
<PAGE> 1
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE GOLDMAN SACHS GROUP, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 2
REGISTERED NO.1 CUSIP NO. 38141G AD 6
ISIN NO. US38141GAD60
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
7.35% Notes due 2009
The following terms apply to this Security, as and to the
extent shown below:
PRINCIPAL AMOUNT:
$200,000,000
STATED MATURITY DATE: October
1, 2009
SPECIFIED CURRENCY: U.S.
dollars for all payments unless otherwise specified below:
- payments of principal and any premium:
- payments of interest:
- Exchange Rate Agent:
INTEREST RATE: 7.35% per annum
INTEREST PAYMENT DATE(S):
Every April 1 and October 1
ORIGINAL ISSUE DATE*:
September 29, 1999
ORIGINAL ISSUE DISCOUNT
SECURITY: N/A
- Total Amount of OID:
- Yield to Maturity:
- Initial Accrual Period
OID:
REDEMPTION COMMENCEMENT DATE:
See Section 5 on the reverse hereof
REPAYMENT DATE(S): N/A
REDEMPTION OR REPAYMENT PRICE(S): See Section 5 on the reverse hereof
DEFEASANCE:
- Full Defeasance: Yes
- Covenant Defeasance: Yes
OTHER TERMS: See Section 4 on the reverse hereof.
Terms left blank or marked "N/A", "No", "None" or in a similar
manner do not apply to this Security except as otherwise may be specified.
- ------------------------------------
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date
of the first Predecessor Security.
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Whenever used in this Security, the terms specified above that
apply to this Security have the meanings specified above, unless the context
requires otherwise. Other terms used in this Security that are not defined
herein but that are defined in the Indenture referred to in Section 1 on the
reverse of this Security are used herein as defined therein.
The Goldman Sachs Group, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture), for
value received, hereby promises to pay to Cede & Co., or registered assigns, as
principal the Principal Amount on the Stated Maturity Date and to pay interest
thereon, from the Original Issue Date or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, on the Interest
Payment Dates in each year, commencing on the first such date that is at least
15 calendar days after the Original Issue Date, and at the Maturity of the
principal hereof, at the rate per annum equal to the Interest Rate specified on
the face hereof, until the principal hereof is paid or made available for
payment. Any premium and any such installment of interest that is overdue at any
time shall also bear interest, at the rate per annum at which the principal then
bears interest (to the extent that the payment of such interest shall be legally
enforceable), from the date any such overdue amount first becomes due until it
is paid or made available for payment. Notwithstanding the foregoing, interest
on any principal, premium or installment of interest that is overdue shall be
payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (whether or not a Business
Day, as such term is defined in Section 3 on the reverse hereof) next preceding
such Interest Payment Date. Any interest so payable, but not punctually paid or
duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular Record Date and such Defaulted Interest
either may be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date
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<PAGE> 4
for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Security not less than 10 days
prior to such Special Record Date, or may be paid in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
CURRENCY OF PAYMENT
Payment of principal of (and premium, if any) and interest on
this Security will be made in the Specified Currency for such payment, except as
provided in this and the next three paragraphs. The Specified Currency for any
payment shall be the currency specified as such on the face of this Security
unless, at the time of such payment, such currency is not legal tender for the
payment of public and private debts in the country issuing such currency on the
Original Issue Date, in which case the Specified Currency for such payment shall
be such coin or currency as at the time of such payment is legal tender for the
payment of public and private debts in such country, except as provided in the
next sentence. If the euro is specified on the face of this Security as the
Specified Currency for any payment, the Specified Currency for such payment
shall be such coin or currency as at the time of payment is legal tender for the
payment of public and private debts in all EMU Countries (as defined in Section
3 on the reverse hereof), provided that, if on any day there are not at least
two EMU Countries, or if on any day there are at least two EMU Countries but no
coin or currency is legal tender for the payment of public and private debts in
all EMU Countries, then the Specified Currency for such payment shall be deemed
not to be available to the Company on such day.
Except as provided in the next paragraph, any payment to be
made on this Security in a Specified Currency other than U.S. dollars will be
made in U.S. dollars if the Person entitled to receive such payment transmits a
written request for such payment to be made in U.S. dollars to the Trustee at
its Corporate Trust Office, Attention: Corporation Trust Trustee Administration,
on or before the fifth Business Day before the payment is to be made. Such
written request may be mailed, hand delivered, telecopied or delivered in any
other manner approved by the Trustee. Any such request made with respect to any
payment on this Security payable to a particular Holder will remain in
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<PAGE> 5
effect for all later payments on this Security payable to such Holder, unless
such request is revoked on or before the fifth Business Day before a payment is
to be made, in which case such revocation shall be effective for such and all
later payments. In the case of any payment of interest payable on an Interest
Payment Date, such written request must be made by the Person who is the
registered Holder of this Security on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the
immediately preceding paragraph will be determined by the Exchange Rate Agent
based upon the highest bid quotation received by the Exchange Rate Agent as of
11:00 A.M., New York City time, on the second Business Day preceding the
applicable payment date, from three (or, if three are not available, then two)
recognized foreign exchange dealers selected by the Exchange Rate Agent in The
City of New York, in each case for the purchase by the quoting dealer, for U.S.
dollars and for settlement on such payment date of an amount of the Specified
Currency for such payment equal to the aggregate amount of such Specified
Currency payable on such payment date to all Holders of Securities of this or
any other series who elect to receive U.S. dollar payments on such payment date,
and at which the applicable dealer commits to execute a contract. If the
Exchange Rate Agent determines that two such bid quotations are not available on
such second Business Day, such payment will be made in the Specified Currency
for such payment. All currency exchange costs associated with any payment in
U.S. dollars on this Security will be borne by the Holder entitled to receive
such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this
Security is payable on any day (including at Maturity) in a Specified Currency
other than U.S. dollars, and if such Specified Currency is not available to the
Company on the two Business Days before such day, due to the imposition of
exchange controls, disruption in a currency market or any other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligation to pay such amount in such Specified Currency by making such payment
in U.S. dollars. The amount of such payment in U.S. dollars shall be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York for such Specified Currency (the "Exchange
Rate") as of the latest day before the day on which such payment is to be made.
Any payment
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<PAGE> 6
made under such circumstances in U.S. dollars where the required payment is in
other than U.S. dollars will not constitute an Event of Default under the
Indenture or this Security.
MANNER OF PAYMENT - U.S. DOLLARS
Except as provided in the next paragraph, payment of any
amount payable on this Security in U.S. dollars will be made at the office or
agency of the Company maintained for that purpose in The City of New York (or at
any other office or agency maintained by the Company for that purpose), against
surrender of this Security in the case of any payment due at the Maturity of the
principal hereof (other than any payment of interest that first becomes due on
an Interest Payment Date); provided, however, that, at the option of the Company
and subject to the next paragraph, payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars
will be made by wire transfer of immediately available funds to an account
maintained by the payee with a bank located in the Borough of Manhattan, The
City of New York, if (i) the principal of this Security is at least $1,000,000
and (ii) the Holder entitled to receive such payment transmits a written request
for such payment to be made in such manner to the Trustee at its Corporate Trust
Office, Attention: Corporation Trust Trustee Administration, on or before the
fifth Business Day before the day on which such payment is to be made; provided
that, in the case of any such payment due at the Maturity of the principal
hereof (other than any payment of interest that first becomes due on an Interest
Payment Date), this Security must be surrendered at the office or agency of the
Company maintained for that purpose in The City of New York (or at any other
office or agency maintained by the Company for that purpose) in time for the
Paying Agent to make such payment in such funds in accordance with its normal
procedures. Any such request made with respect to any payment on this Security
payable to a particular Holder will remain in effect for all later payments on
this Security payable to such Holder, unless such request is revoked on or
before the fifth Business Day before a payment is to be made, in which case such
revocation shall be effective for such payment and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request
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<PAGE> 7
must be made by the Person who is the registered Holder of this Security on the
relevant Regular Record Date. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer with
respect to this Security, but any tax, assessment or other governmental charge
imposed upon any payment will be borne by the Holder of this Security and may be
deducted from the payment by the Company or the Paying Agent.
MANNER OF PAYMENT - OTHER SPECIFIED CURRENCIES
Payment of any amount payable on this Security in a Specified
Currency other than U.S. dollars will be made by wire transfer of immediately
available funds to such account as is maintained in such Specified Currency at a
bank or other financial institution acceptable to the Company and the Trustee
and as shall have been designated at least five Business Days prior to the
applicable payment date by the Person entitled to receive such payment; provided
that, in the case of any such payment due at the Maturity of the principal
hereof (other than any payment of interest that first becomes due on an Interest
Payment Date), this Security must be surrendered at the office or agency of the
Company maintained for that purpose in The City of New York (or at any other
office or agency maintained by the Company for that purpose) in time for the
Paying Agent to make such payment in such funds in accordance with its normal
procedures. Such account designation shall be made by transmitting the
appropriate information to the Trustee at its Corporate Trust Office in the
Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier
or in any other manner approved by the Trustee. Unless revoked, any such account
designation made with respect to this Security by the Holder hereof will remain
in effect with respect to any further payments with respect to this Security
payable to such Holder. If a payment in a Specified Currency other than U.S.
dollars with respect to this Security cannot be made by wire transfer because
the required account designation has not been received by the Trustee on or
before the requisite date or for any other reason, the Company will cause a
notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the Trustee's
receipt of such a designation meeting the requirements specified above, with the
same force and effect as if made on the due date. The Company will pay any
administrative costs imposed by banks
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<PAGE> 8
in connection with making payments by wire transfer with respect to this
Security, but any tax, assessment or other governmental charge imposed upon any
payment will be borne by the Holder of this Security and may be deducted from
the payment by the Company or the Paying Agent.
MANNER OF PAYMENT - GLOBAL SECURITIES
Notwithstanding any provision of this Security or the
Indenture, if this Security is a Global Security, the Company may make any and
all payments of principal, premium and interest on this Security pursuant to the
Applicable Procedures of the Depositary for this Security as permitted in the
Indenture.
PAYMENTS DUE ON A BUSINESS DAY
Unless otherwise specified on the face of this Security, the
following sentence shall apply to this Security. Notwithstanding any provision
of this Security or the Indenture, if any amount of principal, premium or
interest would otherwise be due on this Security on a day (the "Specified Day")
that is not a Business Day, such amount may be paid or made available for
payment on the next succeeding Business Day with the same force and effect as if
such amount were paid on the Specified Day. The provisions of this paragraph
shall apply to the Security in lieu of the provisions of Section 113 of the
Indenture.
------------------------------------
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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-8-
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: September 29, 1999
THE GOLDMAN SACHS GROUP, INC.
By /s/ Dan H. Jester
--------------------------------
Name: Dan H. Jester
Title: Vice President and Treasurer
This is one of the Securities of the series designated herein
and referred to in the Indenture.
THE BANK OF NEW YORK, as Trustee
By /s/ Paul J. Schmalzel
-------------------------------
Authorized Officer
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<PAGE> 10
(Reverse of Security)
1. SECURITIES AND INDENTURE
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities") issued and to be issued in one
or more series under an Indenture, dated as of May 19, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
2. SERIES AND DENOMINATIONS
This Security is one of the series designated on the face
hereof, limited to an aggregate initial offering price not to exceed
$15,000,000,000 (or the equivalent thereof in any other currency or currencies
or currency units), which amount may be increased at the option of the Company
if in the future it determines that it may wish to sell additional Securities of
this series. References herein to "this series" mean the series of securities
designated on the face hereof.
The Securities of this series are issuable only in registered
form without coupons in "Authorized Denominations", which term shall have the
following meaning. For each Security of this series having a principal amount
payable in U.S. dollars, the Authorized Denominations shall be $1,000 and
multiples thereof. For each Security of this series having a principal amount
payable in a Specified Currency other than U.S. dollars, the Authorized
Denominations shall be the amount of such Specified Currency equivalent, at the
Exchange Rate on the first Business Day next preceding the date on which the
Company accepts the offer to purchase such Security, to $1,000 and any multiple
thereof.
3. EXCHANGE RATE AGENT AND RELATED TERMS
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<PAGE> 11
If the principal of or interest on this Security is payable in
a Specified Currency other than U.S. dollars, the Company has initially
appointed the institution named on the face of this Security as Exchange Rate
Agent to act as such agent with respect to this Security, but the Company may,
in its sole discretion, appoint any other institution (including any Affiliate
of the Company) to serve as any such agent from time to time. The Company will
give the Trustee prompt written notice of any change in any such appointment.
Insofar as this Security provides for any such agent to obtain rates, quotes or
other data from a bank, dealer or other institution for use in making any
determination hereunder, such agent may do so from any institution or
institutions of the kind contemplated hereby notwithstanding that any one or
more of such institutions are such agent, Affiliates of such agent or Affiliates
of the Company.
All determinations made by the Exchange Rate Agent may be made
by such agent in its sole discretion and, absent manifest error, shall be
conclusive for all purposes and binding on the Holder of this Security and the
Company. The Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all
purposes of this Security, the term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday or Friday that (i) is not a day on which banking
institutions in The City of New York generally are authorized or obligated by
law, regulation or executive order to close, (ii) if the Specified Currency for
any payment on this Security is other than U.S. dollars or euros, is not a day
on which banking institutions in the principal financial center of the country
issuing such Specified Currency generally are authorized or obligated by law,
regulation or executive order to close, (iii) if the Specified Currency for any
payment on this Security is euros, is not a Euro Business Day and (iv) solely
with respect to any payment or other action to be made or taken at any Place of
Payment outside The City of New York, is a Monday, Tuesday, Wednesday, Thursday
or Friday that is not a day on which banking institutions in such Place of
Payment generally are authorized or obligated by law, regulation or executive
order to close. "Euro Business Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express (TARGET) System, or any successor
system, is open for business. With respect to any particular location, the close
of business on
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<PAGE> 12
any day on which business is not being conducted shall be deemed to mean 5:00
P.M., New York City time, on that day.
References in this Security to U.S. dollars shall mean, as of
any time, the coin or currency that is then legal tender for the payment of
public and private debts in the United States of America.
References in this Security to the euro shall mean, as of any
time, the coin or currency (if any) that is then legal tender for the payment of
public and private debts in all EMU Countries. "EMU Countries" means, at any
time, the countries (if any) then participating in the European Economic and
Monetary Union (or any successor union) pursuant to the Treaty on European Union
of February 1992 (or any successor treaty), as it may be amended from time to
time.
References in this Security to a particular currency other
than U.S. dollars and euros shall mean, as of any time, the coin or currency
that is then legal tender for the payment of public and private debts in the
country issuing such currency on the Original Issue Date.
4. ADDITIONAL AMOUNTS
If the beneficial owner of this Security is a United States
Alien (as defined below), the Company will pay all additional amounts that may
be necessary so that every net payment of the principal of and interest on this
Security to such beneficial owner, after deduction or withholding for or on
account of any present or future tax, assessment or governmental charge imposed
with respect to such payment by any U.S. Taxing Authority (as defined below),
will not be less than the amount provided for in such Security to be then due
and payable; provided, however, that the Company shall have no obligation to pay
additional amounts for or on account of any one or more of the following:
(i) any tax, assessment or other governmental charge imposed
solely because at any time there is or was a connection between such
beneficial owner (or between a fiduciary, settlor, beneficiary or
member of such beneficial owner, if such beneficial owner is an estate,
trust or partnership) and the United States (as defined below) (other
than the mere receipt of a
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payment on, or the ownership or holding of, a Security), including
because such beneficial owner (or such fiduciary, settlor, beneficiary
or member) at any time, for U.S. federal income tax purposes: (a) is or
was a citizen or resident, or is or was treated as a resident, of the
United States, (b) is or was present in the United States, (c) is or
was engaged in a trade or business in the United States, (d) has or had
a permanent establishment in the United States, (e) is or was a
domestic or foreign personal holding company, a passive foreign
investment company or a controlled foreign corporation, (f) is or was a
corporation that accumulates earnings to avoid U.S. federal income tax
or (g) is or was a "10-percent shareholder" of the Company as defined
in section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as
amended or any successor provision;
(ii) any tax, assessment or governmental charge imposed solely
because of a change in applicable law or regulation, or in any official
interpretation or application of applicable law or regulation, that
becomes effective more than 15 days after the day on which the payment
becomes due or is duly provided for, whichever occurs later;
(iii) any estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or any similar tax, assessment or other
governmental charge;
(iv) any tax, assessment or other governmental charge imposed
solely because such beneficial owner or any other Person fails to
comply with any certification, identification or other reporting
requirement concerning the nationality, residence, identity or
connection with the United States of the Holder or any beneficial owner
of this Security, if compliance is required by statute, by regulation
of the U.S. Treasury Department or by an applicable income tax treaty
to which any U.S. Taxing Authority is a party, as a precondition to
exemption from such tax, assessment or other governmental charge;
(v) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or
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<PAGE> 14
withholding from payments of principal of or interest
on this Security;
(vi) any tax, assessment or other governmental charge imposed
solely because the payment is to be made by a particular Paying Agent
(which term may include the Company) and would not be imposed if made
by another Paying Agent (which term may include the Company); or
(vii) any combination of the taxes, assessments or other
governmental charges described in items (i) through (vi) of this
Section 4.
Additional amounts also will not be paid with respect to any
payment of principal of or interest on this Security to any United States Alien
who is a fiduciary or a partnership, or who is not the sole beneficial owner of
any such payment, to the extent that the Company would not be required to pay
Additional Amounts to any beneficiary or settlor of such fiduciary or any member
of such a partnership if that Person had been treated as the beneficial owner of
this Security for this purpose.
The term "United States Alien" means any person who, for U.S.
federal income tax purposes, is a nonresident alien individual, a foreign
corporation, a foreign partnership or an estate or trust that is not subject to
U.S. federal income tax on a net income basis on income or gain from this
Security. For the purposes of this Section 4 and Section 5 only, (a) the term
"United States" means the United States of America (including the states thereof
and the District of Columbia), together with the territories, possessions and
all other areas subject to the jurisdiction of the United States of America and
(b) the term "U.S. Taxing Authority" means the United States of America or any
state, any other jurisdiction or any taxing authority in the United States.
Except as specifically provided in this Security, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein.
Whenever in the Securities of this series (or in
the Indenture, including in Sections 501(1) and (2) thereof,
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<PAGE> 15
insofar as applicable to this series) there is a reference, in any context, to
the payment of the principal of or interest on any Security of this series, such
mention shall be deemed to include mention of any payment of additional amounts
to United States Aliens in respect of such payment of principal or interest to
the extent that, in such context, such additional amounts are, were or would be
payable in respect thereof pursuant to this Section 4 or any corresponding
section of another Security of this series, as the case may be. Express mention
of the payment of additional amounts in any provision of any Security of this
series shall not be construed as excluding additional amounts in the provisions
of any Security of this series (or of the Indenture insofar as it applies to
this series) where such express mention is not made.
5. REDEMPTION AT THE COMPANY'S OPTION
The Securities of this series may be redeemed, as a whole but
not in part, at the option of the Company, at a Redemption Price equal to 100%
of the principal amount of the Securities to be redeemed, together with interest
accrued to the date fixed for redemption, if, as a result of any amendment to,
or change in, the laws or regulations of the United States (as defined in
Section 4 above) or any U.S. Taxing Authority (as defined in Section 4 above),
or any amendment to or change in an official interpretation or application of
such laws or regulations, which amendment or change becomes effective or is
announced on or after September 22, 1999, the Company will become obligated to
pay, on the next Interest Payment Date, additional amounts in respect of any
Security of this series pursuant to Section 4 of this Security or any
corresponding section of another Security of this series. If the Company becomes
entitled to redeem the Securities of this series, it may do so on any day
thereafter pursuant to the Indenture, provided, however, that (1) the Company
gives the Holder of this Security notice of such redemption not more than 60
days nor less than 30 days prior to the date fixed for redemption as provided in
the Indenture, (2) no such notice of redemption may be given earlier than 90
days prior to the next Interest Payment Date on which the Company would be
obligated to pay such additional amounts and (3) at the time such notice is
given, such obligation to pay such additional amounts remains in effect.
Immediately prior to the giving of any notice of redemption of Securities
pursuant to this Section 5, the Company will deliver to the Trustee an
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<PAGE> 16
Officers' Certificate stating that the Company is entitled to effect such
redemption and setting forth in reasonable detail a statement of facts showing
that the conditions precedent to the right of the Company to so redeem the
Securities have occurred. Interest installments due on or prior to a Redemption
Date will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant record date, all
as provided in the Indenture.
6. REPAYMENT AT THE HOLDER'S OPTION
Except as otherwise may be provided on the face hereof, if one
or more Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in an amount equal to any Authorized Denomination
(provided that the remaining principal amount of any Security surrendered for
partial repayment shall at least equal an Authorized Denomination), on any such
Repayment Date, in each case at the option of the Holder and at the applicable
Repayment Price specified on the face hereof (expressed as a percentage of the
principal amount to be repaid), together with accrued interest to the applicable
Repayment Date (but interest installments due on or prior to such Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Date as
provided in the Indenture). If this Security provides for more than one
Repayment Date and the Holder exercises its option to elect repayment, the
Holder shall be deemed to have elected repayment on the earliest Repayment Date
after all conditions to such exercise have been satisfied, and references herein
to the "applicable Repayment Date" shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and
this Security to be repaid, the Company must receive at the applicable address
of the Trustee set forth below (or at such other place or places of which the
Company shall from time to time notify the Holder of this Security), on any
Business Day not later than the 15th, and not earlier than the 25th, calendar
day prior to the applicable Repayment Date (or, if either such calendar day is
not a Business Day, the next succeeding Business Day), either (i) this Security,
with the form below entitled "Option to Elect Repayment" duly completed and
signed, or (ii) a telegram, telex, facsimile transmission or letter from a
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<PAGE> 17
member of a national securities exchange or the National Association of
Securities Dealers, Inc., a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed and signed, not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter
(provided that this Security and form duly completed and signed are received by
the Company by such fifth Business Day). Any such election shall be irrevocable.
The address to which such deliveries are to be made is The Bank of New York,
Attention: Corporation Trust Trustee Administration, 101 Barclay Street, New
York, New York 10286 (or at such other places as the Company or the Trustee
shall notify the Holder of this Security). All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Security for
repayment will be determined by the Company, whose determination will be final
and binding. Notwithstanding the foregoing, (x) if this Security is a Global
Security, the option of the Holder to elect repayment may be exercised in
accordance with the Applicable Procedures of the Depositary for this Security at
least 15 calendar days prior to the applicable Repayment Date and (y) whether or
not this Security is a Global Security, the option of the Holder to elect
repayment may be exercised in any such manner as the Company may approve.
7. TRANSFER AND EXCHANGE
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of Authorized Denominations and for
the same
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<PAGE> 18
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different Authorized Denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company nor the Trustee nor any such agent shall be affected by notice to
the contrary.
If this Security is a Global Security, this Security shall be
subject to the provisions of the Indenture relating to Global Securities,
including the limitations in Section 305 thereof on transfers and exchanges of
Global Securities.
8. DEFEASANCE
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture. If so specified on the face
hereof, either or both of such provisions are applicable to this Security, as so
specified.
9. REMEDIES
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
(Reverse of Security continued on next page)
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<PAGE> 19
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee indemnity reasonably satisfactory
to it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
10. MODIFICATION AND WAIVER
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of all series to be affected (considered
together as one class for this purpose). The Indenture also contains provisions
(i) permitting the Holders of a majority in principal amount of the Securities
at the time Outstanding of all series to be affected under the Indenture
(considered together as one class for this purpose), on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture
(Reverse of Security continued on next page)
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<PAGE> 20
and (ii) permitting the Holders of a majority in principal amount of the
Securities at the time Outstanding of any series to be affected under the
Indenture (with each such series considered separately for this purpose), on
behalf of the Holders of all Securities of such series, to waive certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
11. GOVERNING LAW
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(Reverse of Security continued on next page)
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<PAGE> 21
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTE, SERIES B
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the
Company to repay the Security referred to in this notice (or the portion thereof
specified below) at the applicable Repayment Price, together with interest to
the Repayment Date, all as provided for in such Security, to the undersigned,
whose name, address and telephone number are as follows:
- --------------------------------------------------------------------------------
(please print name of the undersigned)
- --------------------------------------------------------------------------------
(please print address of the undersigned)
- --------------------------------------------------------------------------------
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date,
the undersigned requests repayment on the earliest Repayment Date after the
requirements for exercising this option have been satisfied, and references in
this notice to the Repayment Date mean such earliest Repayment Date. Terms used
in this notice that are defined in such Security are used herein as defined
therein.
For such Security to be repaid the Company must receive at the
applicable address of the Trustee set forth below or at such other place or
places of which the Company or the Trustee shall from time to time notify the
Holder of such Security, any Business Day not later than the 15th or earlier
than the 25th calendar day prior to the Repayment Date (or, if either such
calendar day is not a Business Day, the next succeeding Business Day), (i) such
Security, with this "Option to Elect Repayment" form duly completed and
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<PAGE> 22
signed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc., a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of such Security, (b) the principal amount of such Security and the
amount of such Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby and (d) a guarantee stating that such
Security to be repaid with the form entitled "Option to Elect Repayment" on the
addendum to the Security duly completed and signed will be received by the
Company not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (provided that such Security and form
duly completed and signed are received by the Company by such fifth Business
Day). The address to which such deliveries are to be made is:
The Bank of New York
Attention: Corporation Trust Trustee Administration
101 Barclay Street
New York, New York 10286
or at such other place as the Company or the Trustee shall notify the holder of
such Security.
If less than the entire principal amount of such Security is to be
repaid, specify the portion thereof (which shall equal any Authorized
Denomination) that the Holder elects to have repaid:
____________________________
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
____________________________
Date: _______________ ______________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name of
the Holder as written on the
face of such Security in
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<PAGE> 23
every particular without
alteration or enlargement or
any other change whatsoever.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Security, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
______________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_____________________________
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<PAGE> 24
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________
/______________________/
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
_______________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________________________________________
_______________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:______________
Signature Guaranteed
_________________________ ___________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must
correspond with the name of
the Holder as written upon
the face of the attached
Security in every
particular, without
alteration or enlargement
or any change whatever.
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