<PAGE> 1
REGISTRATION NO. 333-75321
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
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)
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<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. 1 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.***
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.
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. 1 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
30th day of June, 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. 1 to the registration statement (No. 333-75321) has
been signed by the following persons in the capacities indicated on the 30th day
of June, 1999:
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TITLE SIGNATURE
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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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EXHIBIT
NO. DESCRIPTION
------- -----------
<S> <C>
1.1 Form of Distribution Agreement.***
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.
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.**
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<PAGE> 10
<TABLE>
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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
EXHIBIT 4.3
[Form of Floating Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT - 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.]
[IF DTC IS THE DEPOSITARY, INSERT -- 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND
THE REGULATIONS THEREUNDER.]
<PAGE> 2
CUSIP No. _______
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
(Floating Rate)
The following terms apply to this Security, as and to the
extent shown below:
PRINCIPAL AMOUNT:
STATED MATURITY DATE:
SPECIFIED CURRENCY: U.S. dollars for all payments unless otherwise specified
below:
- payments of principal and any premium:
- payments of interest:
- Exchange Rate Agent: Goldman, Sachs & Co.
ORIGINAL ISSUE DATE*:
ORIGINAL ISSUE DISCOUNT SECURITY:
- Total Amount of OID:
- Yield to Maturity:
- Initial Accrual Period OID:
REDEMPTION COMMENCEMENT DATE:
- Telerate Page 7051:
- Telerate Page 7052 (weekly/monthly):
- CMT Index Maturity:
REPAYMENT DATE(S):
REDEMPTION OR REPAYMENT
PRICE(S):
BASE RATE:
- Commercial Paper Rate:
- Prime Rate:
- LIBOR:
- Telerate LIBOR Page:
- Reuters Screen LIBOR Page:
- Index Currency:
- EURIBOR:
- Treasury Rate:
- CMT Rate:
- CD Rate:
- Federal Funds Rate:
- Eleventh District Cost of Funds Rate:
* 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.
(Face of Security continued on next page)
-2-
<PAGE> 3
INDEX MATURITY:
SPREAD:
SPREAD MULTIPLIER:
INITIAL BASE RATE:
MAXIMUM RATE:
MINIMUM RATE:
INTEREST RESET PERIOD:
- if semi-annual, reset will occur in each of the following two
months in each year:
- if annual, reset will occur in the following month in each
year:
- otherwise, reset will occur daily, weekly, monthly or
quarterly in each year as follows:
INTEREST RESET DATE(S): as provided in Section 3(a) on the reverse of this
Security (unless otherwise specified)
INTEREST DETERMINATION DATE(S): as provided in Sections 3(b) through 3(j), as
applicable, on the reverse of this Security (unless otherwise specified)
INTEREST PAYMENT DATE(S): unless otherwise specified, the third Wednesday of the
following:
- each of the 12 calendar months in each year
- each March, June, September and December in each year
- each of the following two calendar months in each year:
- the following calendar month in each year:
subject to the second paragraph under "Payments Due on a Business Day" below
INTEREST CALCULATION DATE(S): as provided in Section 3(n) on the reverse of this
Security (unless otherwise specified)
CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE:
- Full Defeasance: N/A
- Covenant Defeasance: N/A
OTHER TERMS:
(Face of Security continued on next page)
-3-
<PAGE> 4
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.
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.
(Face of Security continued on next page)
-4-
<PAGE> 5
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 _____________, 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 Date(s) 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 a rate per annum determined in accordance with the
applicable provisions of Section 3 on the reverse 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 (to
the extent that the payment of such interest shall be legally enforceable), at
the rate per annum at which the principal then bears interest, 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 15th calendar day (whether or not
a Business Day, as such term is defined in Section 3(n) on the reverse hereof)
next preceding such Interest Payment Date (a "Regular Record 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 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.
(Face of Security continued on next page)
-5-
<PAGE> 6
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(n) 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 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
preceding paragraph will be determined by
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<PAGE> 7
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 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
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(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 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 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
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<PAGE> 9
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 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
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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 (unless the Base Rate is LIBOR or
EURIBOR and such next succeeding Business Day falls in the next calendar month,
in which case such amount may be paid or made available for payment on the next
preceding 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 this
Security in lieu of the provisions of Section 113 of the Indenture.
Unless otherwise specified on the face of this Security, the
following sentence shall apply to each Interest Payment Date other than one that
falls on the date of Maturity of the principal hereof. If any such Interest
Payment Date would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be deferred to the next succeeding Business Day, provided
that, if the Base Rate is LIBOR or EURIBOR and the next succeeding Business Day
would fall in the next calendar month, then such Interest Payment Date will be
advanced to the next preceding Business Day.
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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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
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_________________________________
Authorized Officer
<PAGE> 12
(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. INTEREST RATE
(a) INTEREST RATE RESET. The interest rate on this Security
will be reset from time to time, as provided in this Section 3, and each date
upon which such rate is
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reset as so provided is hereinafter called an "Interest Reset Date". Unless
otherwise specified on the face hereof, the Interest Reset Dates with respect to
this Security will be as follows:
(i) if the Interest Reset Period is daily, each
Business Day;
(ii) if the Interest Reset Period is weekly and the Base Rate
is not the Treasury Rate, the Wednesday of each week;
(iii) if the Interest Reset Period is weekly and the Base Rate
is the Treasury Rate, except as otherwise provided in the definition of
"Treasury Interest Determination Date" in Section 3(n) below, the
Tuesday of each week;
(iv) if the Interest Reset Period is monthly, the third
Wednesday of each month;
(v) if the Interest Reset Period is quarterly, the third
Wednesday of each March, June, September and December;
(vi) if the Interest Reset Period is semi-annual, the third
Wednesday of each of two months in each year specified under "Interest
Reset Period" on the face hereof; and
(vii) if the Interest Reset Period is annual, the third
Wednesday of the month in each year specified under "Interest Reset
Period" on the face hereof;
provided, however, that (x) the Base Rate in effect from the Original Issue Date
to but excluding the first Interest Reset Date will be the Initial Base Rate and
(y) if the Interest Reset Period is daily or weekly, the Base Rate in effect for
each day following the second Business Day immediately prior to an Interest
Payment Date to but excluding such Interest Payment Date, and for each day
following the second Business Day immediately prior to the day of Maturity of
the principal hereof to but excluding such day of Maturity, will be the Base
Rate in effect on such applicable second Business Day; and provided, further,
that, if any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be the next succeeding day that is a
Business Day, except that, unless otherwise specified on the face hereof, if the
Base Rate is LIBOR and such next succeeding Business Day
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falls in the next succeeding calendar month, such Interest Reset Date shall be
the immediately preceding Business Day.
Subject to applicable provisions of law and except as
otherwise specified herein, on each Interest Reset Date the interest rate on
this Security shall be the rate determined in accordance with such of the
following Sections 3(b) through 3(j) as provide for determination of the Base
Rate for this Security. The Calculation Agent shall determine the interest rate
of this Security in accordance with the applicable Section below.
Unless the Base Rate is LIBOR or EURIBOR, the Calculation
Agent will determine the interest rate of this Security that takes effect on any
Interest Reset Date on a day no later than the Calculation Date (as defined in
Section 3(n) below) corresponding to such Interest Reset Date. However, the
Calculation Agent need not wait until the Calculation Date to determine such
interest rate if the rate information it needs to make such determination in the
manner specified in the applicable provisions of Sections 3(b) through 3(j)
hereof is available from the relevant sources specified in such applicable
provisions.
Upon request of the Holder to the Calculation Agent, the
Calculation Agent will provide the interest rate then in effect on this Security
and, if determined, the interest rate that will become effective on the next
Interest Reset Date.
(b) DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate
is the Commercial Paper Rate, the Base Rate that takes effect on any Interest
Reset Date shall equal the Money Market Yield (as defined in Section 3(n) below)
of the rate, for the second Business Day immediately preceding such Interest
Reset Date (the "Commercial Paper Interest Determination Date"), for commercial
paper having the Index Maturity, as published in H.15(519) (as defined in
Section 3(n) below) under the heading "Commercial Paper -- Nonfinancial". If the
Commercial Paper Rate cannot be determined as described above, the following
procedures will apply in determining the Commercial Paper Rate:
(i) If the rate described above does not appear in H.15(519)
at 3:00 P.M., New York City time, on the Calculation Date (as defined
in Section 3(n) below) corresponding to such Commercial Paper Interest
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<PAGE> 15
Determination Date (unless the calculation is made earlier and the rate
is available from that source at that time), then the Commercial Paper
Rate will be the rate, for such Commercial Paper Interest Determination
Date, for commercial paper having the Index Maturity, as published in
H.15 Daily Update (as defined in Section 3(n) below) or any other
recognized electronic source used for displaying that rate, under the
heading "Commercial Paper -- Nonfinancial".
(ii) If the rate described in clause (i) above does not appear
in H.15(519), H.15 Daily Update or another recognized electronic source
at 3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Commercial Paper Rate will be the Money
Market Yield of the arithmetic mean of the following offered rates for
U.S. dollar commercial paper that has the Index Maturity and is placed
for an industrial issuer whose bond rating is "AA", or the equivalent,
from a nationally recognized rating agency: the rates offered as of
11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date by three leading U.S. dollar commercial paper
dealers in New York City selected by the Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (ii) above, the Commercial
Paper Rate shall be the Commercial Paper Rate in effect on such
Commercial Paper Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(b)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(c) DETERMINATION OF PRIME RATE. If the Base Rate is the Prime
Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the
rate, for the second Business Day immediately preceding such Interest Reset Date
(the "Prime Interest Determination Date"), published in H.15(519) under the
heading "Bank Prime Loan". If the Prime Rate cannot be determined as described
above, the following procedures will apply in determining the Prime Rate:
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(i) If the rate described above does not appear in H.15(519)
at 3:00 P.M., New York City time, on the Calculation Date corresponding
to such Prime Interest Determination Date (unless the calculation is
made earlier and the rate is available from one of those sources at
that time), then the Prime Rate will be the rate, for such Prime
Interest Determination Date, as published in H.15 Daily Update or
another recognized electronic source used for the purpose of displaying
that rate, under the heading "Bank Prime Loan".
(ii) If the rate described in clause (i) above does not appear
in H.15(519), H.15 Daily Update or another recognized electronic source
at 3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), then the Prime Rate will be the arithmetic mean
of the following rates as they appear on the Reuters Screen US PRIME 1
Page (as defined in Section 3(n) below): the rate of interest publicly
announced by each bank appearing on that page as that bank's prime rate
or base lending rate, as of 11:00 A.M., New York City time, on such
Prime Interest Determination Date.
(iii) If fewer than four of the rates referred to in clause
(ii) above appear on the Reuters Screen US PRIME 1 Page, the Prime Rate
will be the arithmetic mean of the Prime Rates or base lending rates,
as of the close of business on such Prime Interest Determination Date,
of three major banks in New York City selected by the Calculation
Agent. For this purpose, the Calculation Agent will use rates quoted on
the basis of the actual number of days in the year divided by a 360-day
year.
(iv) If fewer than three banks selected by the Calculation
Agent are quoting as described in clause (iii) above, the Prime Rate
shall be the Prime Rate in effect on such Prime Interest Determination
Date (or, in the case of the first Interest Reset Date, the Initial
Base Rate).
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The Base Rate determined in accordance with this Section 3(c)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(d) DETERMINATION OF LIBOR. If the Base Rate is LIBOR, the
Base Rate that takes effect on any Interest Reset Date shall be LIBOR on the
corresponding LIBOR Interest Determination Date (as defined in Section 3(n)
below) and shall be determined in accordance with the following provisions:
LIBOR will be either of the following rates, whichever appears
on the face hereof:
(x) the offered rate appearing on the Telerate LIBOR Page (as
defined in Section 3(n) below); or
(y) the arithmetic mean of the offered rates appearing on the
Reuters Screen LIBOR Page (as defined in Section 3(n) below) unless
that page by its terms cites only one rate, in which case that rate;
in either case, as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date for deposits of the Index Currency having the Index Maturity
beginning on such Interest Reset Date. If no reference page is specified on the
face hereof, Telerate LIBOR Page will apply to this Security:
(i) If Telerate LIBOR Page is specified on the face hereof and
the rate referenced in clause (x) above does not appear on that page,
or if Reuters Screen LIBOR Page is specified on the face hereof and
fewer than two of the rates referenced in clause (y) above appear on
that page or no rate appears on any page on which only one rate
normally appears, then LIBOR will be determined on the basis of the
rates, at approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date, at which deposits of the following kind are offered
to prime banks in the London interbank market by four major banks in
that market selected by the Calculation Agent: deposits of the Index
Currency having the Index Maturity beginning on such Interest Reset
Date and in a Representative Amount
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(as defined in Section 3(n) below). The Calculation Agent will request
the principal London office of each such bank to provide a quotation of
its rate. If at least two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of the
quotations.
(ii) If fewer than two quotations are provided as described in
clause (i) above, LIBOR for such LIBOR Interest Determination Date will
be the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. in the
principal financial center for the country issuing the Index Currency,
on such LIBOR Interest Determination Date, by three major banks in that
financial center selected by the Calculation Agent: loans of the Index
Currency having the Index Maturity beginning on such Interest Reset
Date and in a Representative Amount.
(iii) If fewer than three banks selected by the Calculation
Agent are quoting as described in clause (ii) above, LIBOR will be the
LIBOR in effect on such LIBOR Interest Determination Date (or, in the
case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(d)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any. If the Base Rate is
LIBOR and no currency is specified on the face hereof as the Index Currency, the
Index Currency shall be U.S. dollars.
(e) DETERMINATION OF EURIBOR. If the Base Rate is EURIBOR, the
Base Rate that takes effect on any Interest Reset Date shall equal the interest
rate for deposits in euros designated as "EURIBOR" and sponsored jointly by the
European Banking Federation and ACI -- the Financial Market Association (or any
company established by the joint sponsors for purposes of compiling and
publishing that rate) on the second Euro Business Day (as defined in Section
3(n) below) before such Interest Reset Date (a "EURIBOR Interest Determination
Date"), and will be determined in accordance with the following provisions:
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(i) EURIBOR will be the offered rate for deposits in euros
having the Index Maturity beginning on such Interest Reset Date, as
that rate appears on Telerate Page 248 (as defined in Section 3(n)
below) as of 11:00 A.M., Brussels time, on such EURIBOR Interest
Determination Date.
(ii) If the rate described in clause (i) above does not appear
on Telerate Page 248, EURIBOR will be determined on the basis of the
rates, at approximately 11:00 A.M., Brussels time, on such EURIBOR
Interest Determination Date, at which deposits of the following kind
are offered to prime banks in the Euro-Zone (as defined in Section 3(n)
below) interbank market by the principal Euro-Zone office of each of
four major banks in that market selected by the Calculation Agent: euro
deposits having the Index Maturity beginning on such Interest Reset
Date and in a Representative Amount. The Calculation Agent will request
the principal Euro-Zone office of each of these banks to provide a
quotation of its rate. If at least two quotations are provided,
EURIBOR for such EURIBOR Interest Determination Date will be the
arithmetic mean of such quotations.
(iii) If fewer than two quotations are provided as described
in clause (ii) above, EURIBOR for such EURIBOR Interest Determination
Date will be the arithmetic mean of the rates for loans of the
following kind to leading Euro-Zone banks quoted, at approximately
11:00 A.M., Brussels time, on such EURIBOR Interest Determination Date,
by three major banks in the Euro-Zone selected by the Calculation
Agent: loans of euros having the Index Maturity beginning on such
Interest Reset Date and in a Representative Amount.
(iv) If fewer than three banks selected by the Calculation
Agent are quoting as described in clause (iii) above, EURIBOR shall be
the EURIBOR in effect on such EURIBOR Interest Determination Date (or,
in the case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(e)
will be adjusted by the addition or subtraction
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of the Spread, if any, or by multiplying such Base Rate by the Spread
Multiplier, if any.
(f) DETERMINATION OF TREASURY RATE. If the Base Rate is the
Treasury Rate, the Base Rate that takes effect on any Interest Reset Date shall
equal the rate for the auction on the corresponding Treasury Interest
Determination Date (as defined in Section 3(n) below) of direct obligations of
the United States ("Treasury Bills") having the Index Maturity, as that rate
appears on Telerate Page 56 or 57 under the heading "Investment Rate". If the
Treasury Rate cannot be determined as described above, the following procedures
will apply in determining the Treasury Rate:
(i) If the rate described above does not appear on either
Telerate Page 56 or 57 at 3:00 P.M., New York City time, on the
Calculation Date corresponding to such Treasury Interest Determination
Date (unless the calculation is made earlier and the rate is available
from that source at that time), the Treasury Rate will be the Bond
Equivalent Yield (as defined in Section 3(n) below) of the rate, for
such Treasury Interest Determination Date and for Treasury Bills having
the Index Maturity, as published in H.15 Daily Update, or another
recognized electronic source used for displaying that rate, under the
heading "U.S. Government Securities/Treasury Bills/Auction High".
(ii) If the rate described in clause (i) above does not appear
in H.15 Daily Update or another recognized electronic source at 3:00
P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Treasury Rate will be the Bond Equivalent
Yield of the auction rate, for such Treasury Interest Determination
Date and for Treasury Bills having the Index Maturity, as announced by
the U.S. Department of the Treasury.
(iii) If the auction rate described in clause (ii) above is
not so announced by 3:00 P.M., New York City time, on such Calculation
Date, or if no such auction is held for the relevant week, then the
Treasury Rate will be the Bond Equivalent Yield of the rate, for such
Treasury Interest Determination Date and for Treasury Bills having a
remaining maturity closest to the Index Maturity, as published in
H.15(519) under
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the heading "U.S. Government Securities/Treasury Bills/Secondary
Market".
(iv) If the rate described in clause (iii) above does not
appear in H.15(519) at 3:00 P.M., New York City time, on such
Calculation Date (unless the calculation is made earlier and the rate
is available from one of those sources at that time), then the Treasury
Rate will be the rate, for such Treasury Interest Determination Date
and for Treasury Bills having a remaining maturity closest to the Index
Maturity, as published in H.15 Daily Update, or another recognized
electronic source used for displaying that rate, under the heading
"U.S. Government Securities/ Treasury Bills /Secondary Market".
(v) If the rate described in clause (iv) above does not appear
in H.15 Daily Update or another recognized electronic source at 3:00
P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Treasury Rate will be the Bond Equivalent
Yield of the arithmetic mean of the following secondary market bid
rates for the issue of Treasury Bills with a remaining maturity closest
to the Index Maturity: the rates bid as of approximately 3:30 P.M., New
York City time, on such Treasury Interest Determination Date, by three
primary U.S. government securities dealers in New York City selected by
the Calculation Agent.
(vi) If fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (v) above, the Treasury Rate
shall be the Treasury Rate in effect on such Treasury Interest
Determination Date (or, in the case of the first Interest Reset Date,
the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(f)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any, specified on the
face hereof.
(g) DETERMINATION OF CMT RATE. If the Base Rate is the CMT
Rate, the Base Rate that takes effect on any Interest Reset Date shall equal the
CMT Rate on the second Business Day immediately preceding such Interest Reset
Date
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<PAGE> 22
(the "CMT Interest Determination Date"). "CMT Rate" means the following rate
displayed on the Designated CMT Telerate Page (as defined in Section 3(n) below)
under the heading " . . . Treasury Constant Maturities . . . Federal Reserve
Board Release H.15 . . . Mondays Approximately 3:45 P.M.", under the column for
the Designated CMT Index Maturity (as defined in Section 3(n) below):
(x) if the Designated CMT Telerate Page is Telerate Page 7051,
the rate for such CMT Interest Determination Date; or
(y) if the Designated CMT Telerate Page is Telerate Page 7052,
the weekly or monthly average, as specified on the face hereof, for the
week that ends immediately before the week in which such CMT Interest
Determination Date falls, or for the month that ends immediately before
the month in which such CMT Interest Determination Date falls, as
applicable.
If the CMT Rate cannot be determined as described above, the following
procedures will apply in determining the CMT Rate:
(i) If the applicable rate described above is not displayed on
the relevant Designated CMT Telerate Page at 3:00 P.M., New York City
time, on the Calculation Date corresponding to such CMT Interest
Determination Date (unless the calculation is made earlier and the rate
is available from that source at that time), then the CMT Rate will be
the applicable Treasury constant maturity rate described above -- i.e.,
for the Designated CMT Index Maturity and for either such CMT Interest
Determination Date or the weekly or monthly average, as applicable --
as published in H.15(519).
(ii) If the applicable rate described in clause (i) above does
not appear in H.15(519) at 3:00 P.M., New York City time, on such
Calculation Date (unless the calculation is made earlier and the rate
is available from that source at that time), then the CMT Rate will be
the Treasury constant maturity rate, or other U.S. Treasury rate, for
the Designated CMT Index Maturity and with reference to such CMT
Interest Determination Date, that:
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<PAGE> 23
(a) is published by the Board of Governors of the
Federal Reserve System, or the U.S. Department of the
Treasury, and
(b) is determined by the Calculation Agent to be
comparable to the applicable rate formerly displayed on the
Designated CMT Telerate Page and published in H.15(519).
(iii) If the rate described in clause (ii) above does not
appear in H.15(519) at 3:00 P.M., New York City time, on such
Calculation Date (unless the calculation is made earlier and the rate
is available from that source at that time), then the CMT will be the
yield to maturity of the arithmetic mean of the following secondary
market offered rates for the most recently issued Treasury Notes (as
defined in Section 3(n) below) having an original maturity of
approximately the Designated CMT Index Maturity, having a remaining
term to maturity of not less than the Designated CMT Index Maturity
minus one year and in a Representative Amount: the offered rates, as of
approximately 3:30 P.M., New York City time, on such CMT Interest
Determination Date, of three primary U.S. government securities dealers
in New York City selected by the Calculation Agent. In selecting such
offered rates, the Calculation Agent will request quotations from five
such primary dealers and will disregard the highest quotation -- or, if
there is equality, one of the highest -- and the lowest quotation --
or, if there is equality, one of the lowest.
(iv) If the Calculation Agent is unable to obtain three
quotations of the kind described in clause (iii) above, the CMT Rate
will be the yield to maturity of the arithmetic mean of the following
secondary market offered rates for Treasury Notes having an original
maturity longer than the Designated CMT Index Maturity, having a
remaining term to maturity closest to the Designated CMT Index Maturity
and in a Representative Amount: the offered rates, as of approximately
3:30 P.M., New York City time, on such CMT Interest Determination Date,
of three primary U.S. government securities dealers in New York City
selected by the Calculation Agent. In selecting such offered rates, the
Calculation Agent will request quotations from five such primary
dealers and will disregard the highest
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<PAGE> 24
quotation -- or, if there is equality, one of the highest -- and the
lowest quotation -- or, if there is equality, one of the lowest. If two
Treasury Notes with an original maturity longer than the CMT Designated
Index Maturity have remaining terms to maturity that are equally close
to the Designated CMT Index Maturity, the Calculation Agent will obtain
quotations for the Treasury Note with the shorter remaining term to
maturity.
(v) If fewer than five but more than two such primary dealers
are quoting as described in clause (iv) above, then the CMT Rate for
such CMT Interest Determination Date will be based on the arithmetic
mean of the offered rates so obtained, and neither the highest nor the
lowest of such quotations will be disregarded.
(vi) If two or fewer primary dealers selected by the
Calculation Agent are quoting as described in clause (v) above, the CMT
Rate shall be the CMT Rate in effect on such CMT Interest Determination
Date (or, in the case of the first Interest Reset Date, the Initial
Base Rate).
The Base Rate determined in accordance with this Section 3(g)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(h) DETERMINATION OF CD RATE. If the Base Rate is the CD Rate,
the Base Rate that takes effect on any Interest Reset Date shall equal the rate,
on the second Business Day immediately preceding such Interest Reset Date (the
"CD Interest Determination Date"), for negotiable U.S. dollar certificates of
deposit having the Index Maturity as published in H.15(519) under the heading
"CDs (Secondary Market)". If the CD Rate cannot be determined as described
above, the following procedures will apply in determining the CD Rate:
(i) If the rate described above does not appear in H.15(519)
at 3:00 P.M., New York City time, on the Calculation Date corresponding
to such CD Interest Determination Date (unless the calculation is made
earlier and the rate is available from that source at that time), then
the CD Rate shall be the rate
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described above as published in H.15 Daily Update, or another
recognized electronic source used for displaying that rate, under the
heading "CDs (Secondary Market)".
(ii) If the rate described in clause (i) above does not appear
in H.15(519), H.15 Daily Update or another recognized electronic source
at 3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), then CD Rate shall be the arithmetic mean of the
following secondary market offered rates for negotiable U.S. dollar
certificates of deposit of major U.S. money center banks having a
remaining maturity closest to the Index Maturity and in a
Representative Amount: the rates offered as of 10:00 A.M., New York
City time, on such CD Interest Determination Date, by three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in
New York City, as selected by the Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation
Agent are quoting as described in clause (ii) above, the CD Rate will
be the CD Rate in effect on such CD Interest Determination Date (or, in
the case of the first Base Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(h)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(i) DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate is
the Federal Funds Rate, the Base Rate that takes effect on any Interest Reset
Date shall equal the rate, on the second Business Day immediately preceding such
Interest Reset Date (the "Federal Funds Interest Determination Date"), for
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)", as that rate is displayed on Telerate Page 120. If the Federal
Funds Rate cannot be determined as described above, the following procedures
will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on Telerate
Page 120 at 3:00 P.M., New York City time,
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<PAGE> 26
on the Calculation Date corresponding to such Federal Funds Interest
Determination Date (unless the calculation is made earlier and the rate
is available from that source at that time), then the Federal Funds
Rate will be the rate described above as published in H.15 Daily
Update, or another recognized electronic source used for displaying
that rate, under the heading "Federal Funds (Effective)".
(ii) If the rate described in clause (i) above is not
displayed on Telerate Page 120 and does not appear in H.15 (519), H.15
Daily Update or another recognized electronic source at 3:00 P.M., New
York City time, on such Calculation Date (unless the calculation is
made earlier and the rate is available from one of those sources at
that time), the federal funds Rate will be the arithmetic mean of the
rates for the last transaction in overnight, U.S. dollar federal funds
arranged, before 9:00 A.M., New York City time, on such Federal Funds
Interest Determination Date, by three leading brokers of U.S. dollar
federal funds transactions in New York City selected by the Calculation
Agent.
(iii) If fewer than three brokers selected by the Calculation
Agent are quoting as described in clause (ii) above, the Federal Funds
Rate will be the Federal Funds Rate in effect on such Federal Funds
Interest Determination Date (or, in the case of the first Interest
Reset Date, the Initial Base Rate).
The interest rate determined in accordance with this Section
3(i) will be adjusted by the addition or subtraction of the Spread, if any, or
by multiplying such Base Rate by the Spread Multiplier, if any.
(j) DETERMINATION OF 11TH DISTRICT RATE. If the Base Rate is
the Eleventh District Cost of Funds Rate (the "11th District Rate"), the Base
Rate that takes effect on any Interest Reset Date shall equal the 11th District
Rate on the 11th District Interest Determination Date (as defined in Section
3(n) below) corresponding to such Interest Reset Date. The 11th District Rate on
any 11th District Interest Determination Date shall be the rate equal to the
monthly weighted average cost of funds for the calendar month immediately before
such date, as displayed on Telerate Page 7058 under the heading "11th District"
as of 11:00 A.M., San
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Francisco time, on such date. If the 11th District Rate cannot be determined as
described above, the following procedures will apply in determining the 11th
District Rate:
(i) If the rate described above does not appear on Telerate
Page 7058 on such 11th District Interest Determination Date, then the
11th District Rate on such date will be the monthly weighted average
cost of funds paid by institutions that are members of the Eleventh
Federal Home Loan District for the calendar month immediately preceding
such date, as most recently announced by the Federal Home Loan Bank of
San Francisco as such monthly weighted average cost of funds.
(ii) If the Federal Home Loan Bank of San Francisco fails to
announce the cost of funds described in clause (i) above on or before
such 11th District Interest Determination Date, the 11th District Rate
that takes effect on such Interest Reset Date will be the 11th District
Rate in effect on such 11th District Interest Determination Date (or,
in the case of the first Interest Reset Date, the Initial Base Rate).
The interest rate determined in accordance with this Section
3(j) will be adjusted by the addition or subtraction of the Spread, if any, or
by multiplying such Base Rate by the Spread Multiplier, if any.
(k) MINIMUM AND MAXIMUM LIMITS. Notwithstanding the foregoing,
the rate at which interest accrues on this Security (i) shall not at any time be
higher than the Maximum Rate, if any, or less than the Minimum Rate, if any,
specified on the face hereof, in each case on an accrual basis, and (ii) shall
not at any time be higher than the maximum rate permitted by New York law, as
the same may be modified by United States law of general application.
(l) CALCULATION OF INTEREST. Payments of interest hereon with
respect to any Interest Payment Date or at the Maturity of the principal hereof
will include interest accrued to but excluding such Interest Payment Date or the
date of such Maturity, as the case may be. Accrued interest from the date of
issue or from the last date to which interest has been paid or duly provided for
shall be calculated by the Calculation Agent by multiplying the Principal Amount
by an accrued interest factor. Such
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<PAGE> 28
accrued interest factor shall be computed by adding the interest factors
calculated for each day from and including the Original Issue Date or from and
including the last date to which interest has been paid or duly provided for, to
but excluding the date for which accrued interest is being calculated. The
interest factor for each such day shall be expressed as a decimal and computed
by dividing the interest rate (also expressed as a decimal) in effect on such
day by 360, if the Base Rate is the Commercial Paper Rate, Prime Rate, LIBOR,
EURIBOR, CD Rate, Federal Funds Rate or 11th District Rate, or by the actual
number of days in the year, if the Base Rate is the Treasury Rate or CMT Rate.
All percentages resulting from any calculation with respect to
this Security will be rounded upward or downward, as appropriate, to the next
higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541%
(or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or
.09876545) being rounded up to 9.87655% (or .0987655) ). All amounts used in or
resulting from any calculation with respect to this Security will be rounded
upward or downward, as appropriate, to the nearest cent, in the case of U.S.
dollars, or to the nearest corresponding hundredth of a unit, in the case of a
currency other than U.S. dollars, with one-half cent or one-half of a
corresponding hundredth of a unit or more being rounded upward.
(m) CALCULATION AGENT AND EXCHANGE RATE AGENT. The Company has
initially appointed the institutions named on the face of this Security as
Calculation Agent and Exchange Rate Agent, respectively, to act as such agents
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 any such
agent, Affiliates of any such agent or Affiliates of the Company.
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<PAGE> 29
All determinations made by the Calculation Agent or 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. Neither the Calculation Agent nor the Exchange
Rate Agent shall have any liability therefor.
(n) DEFINITIONS OF CALCULATION TERMS. As used in this
Security, the following terms have the meanings set forth below:
"Bond Equivalent Yield" means a yield expressed as a
percentage and calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100,
-------------
360 - (D x M)
where
- "D" equals the annual rate for Treasury Bills quoted on a bank
discount basis and expressed as a decimal;
- "N" equals 365 or 366, as the case may be; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding
the next succeeding Interest Reset Date.
"Business Day" means, for this Security, a day that meets the
requirements set forth in each of clauses (i) through (iv) below, in each case
to the extent such requirements apply to this Security as specified below:
(i) is a Monday, Tuesday, Wednesday, Thursday or Friday that 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 Base Rate is LIBOR, is also a London Business Day;
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(iii) if the Specified Currency for payment of principal of or
interest on this Security is other than U.S. dollars or euros,
is also a day on which banking institutions in the principal
financial center of the country issuing such Specified
Currency generally are not authorized or obligated by law,
regulation or executive order to close;
(iv) if the Base Rate is EURIBOR or if the Specified Currency for
payment of principal of or interest on this Security is euros,
or the Base Rate is LIBOR for which the Index Currency is
euros, is also a Euro Business Day; and
(v) 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.
Solely when used in the third paragraph under the heading "Currency of Payment"
on the face of this Security, the meaning of the term "Business Day" shall be
determined as if the Base Rate for this Security is neither LIBOR nor EURIBOR.
With respect to any particular location, the close of business on any day on
which business is not being conducted at that location shall be deemed to mean
5:00 P.M., New York City time, on that day.
The "Calculation Date" corresponding to any Commercial Paper
Interest Determination Date, Prime Interest Determination Date, LIBOR Interest
Determination Date, EURIBOR Interest Determination Date, Treasury Interest
Determination Date, CMT Interest Determination Date, CD Interest Determination
Date, Federal Funds Interest Determination Date or 11th District Interest
Determination Date, as the case may be, means the earlier of:
(i) the tenth day after such interest determination date or,
if any such day is not a Business Day, the next succeeding Business
Day; and
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(ii) the Business Day immediately preceding the Interest
Payment Date or the date of Maturity of the principal hereof, whichever
is the day on which the next payment of interest will be due.
The Calculation Date corresponding to any Interest Reset Date means the
Calculation Date corresponding to the relevant interest determination date
immediately preceding such Interest Reset Date.
"Designated CMT Index Maturity" means, if the Base Rate is the
CMT Rate, the Index Maturity for this Security and will be the original period
to maturity of a U.S. Treasury security -- either 1, 2, 3, 5, 7, 10, 20 or 30
years -- specified on the face hereof, provided that, if no such original
maturity period is so specified, the Designated CMT Index Maturity will be 2
years.
"Designated CMT Telerate Page" means, if the Base Rate is the
CMT Rate, the Telerate Page specified on the face hereof that displays Treasury
constant maturities as reported in H.15(519), provided that, if no Telerate Page
is so specified, then the applicable page will be Telerate Page 7052 and
provided, further, that if Telerate Page 7052 applies but it is not specified on
the face hereof whether the weekly or monthly average applies, the weekly
average will apply.
The "11th District Interest Determination Date" corresponding
to a particular Interest Reset Date will be the last working day, in the first
calendar month immediately preceding such Interest Reset Date, on which the
Federal Home Loan Bank of San Francisco publishes the monthly average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District for the second calendar month immediately preceding such Interest Reset
Date.
"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.
"Euro Business Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express
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Transfer (TARGET) System, or any successor system, is open for business.
"Euro-Zone" means, at any time, the region comprised of the
EMU Countries.
"H.15(519)" means the weekly statistical release entitled
"Statistical Release H.15 (519)", or any successor publication, published by the
Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519)
available through the worldwide web site of the Board of Governors of the
Federal Reserve System, at http://www. bog.frb.fed.us/releases/h15/update, or
any successor site or publication.
The "LIBOR Interest Determination Date" corresponding to any
Interest Reset Date means the second London Business Day preceding such Interest
Reset Date, unless the Index Currency is pounds sterling, in which case the
LIBOR Interest Determination Date will be the Interest Reset Date.
"London Business Day" means any day on which dealings in the
Index Currency are transacted in the London interbank market.
"Money Market Yield" means a yield expressed as a percentage
and calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100,
-------------
360 - (D x M)
where
- "D" equals the per annum rate for commercial paper quoted on a
bank discount basis and expressed as a decimal; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding
the next succeeding Interest Reset Date.
"Representative Amount" means an amount that, in the
Calculation Agent's judgment, is representative of a
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single transaction in the relevant market at the relevant time.
"Reuters Screen LIBOR Page" means the display on the Reuters
Monitor Money Rates Service, or any successor service, on the page designated as
"LIBO" or any replacement page or pages on which London interbank rates of major
banks for the Index Currency are displayed.
"Reuters Screen US PRIME 1 Page" means the display on the "US
PRIME 1" page on the Reuters Monitor Money Rates Service, or any successor
service, or any replacement page or pages on that service, for the purpose of
displaying prime rates or base lending rates of major U.S. banks.
"Telerate LIBOR Page" means Telerate Page 3750 or any
replacement page or pages on which London interbank rates of major banks for the
Index Currency are displayed.
"Telerate Page" means the display on Bridge Telerate, Inc., or
any successor service, on the page or pages specified on the face hereof, or any
replacement page or pages on that service.
The "Treasury Interest Determination Date" corresponding to
any Interest Reset Date means the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. If, as the
result of a legal holiday, an auction is so held on the Friday in the week
immediately preceding the week in which such Interest Reset Day falls, such
Friday will be the corresponding Treasury Interest Determination Date. If an
auction date shall fall on a day that would otherwise be an Interest Reset Date,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
"Treasury Notes" means direct, noncallable, fixed rate
obligations of the U.S. government.
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
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<PAGE> 34
then legal tender for the payment of public and private debts in all EMU
Countries.
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.
References in this Security to a particular heading or
headings on any of Designated CMT Telerate Page, H.15(519), H.15 Daily Update,
Reuters Screen LIBOR Page, Reuters Screen US Prime 1 Page, Telerate LIBOR Page
or Telerate Page include any successor or replacement heading or headings as
determined by the Calculation Agent.
4. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face
hereof, this Security shall not be redeemable at the option of the Company
before the Stated Maturity Date. If a Redemption Commencement Date is so
specified, and unless otherwise specified on the face hereof, this Security is
subject to redemption upon not less than 30 days' nor more than 60 days' notice
at any time and from time to time on or after the Redemption Commencement Date,
in each case as a whole or in part, at the election of the Company and at the
applicable Redemption Price specified on the face hereof (expressed as a
percentage of the principal amount of this Security to be redeemed), together
with accrued interest to the Redemption Date, but interest installments due on
or prior to such 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.
5. 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
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<PAGE> 35
(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
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: Corporate 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
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<PAGE> 36
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.
6. 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 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.
(Reverse of Security continued on next page)
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<PAGE> 37
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.
7. 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.
8. 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.
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.
(Reverse of Security continued on next page)
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<PAGE> 38
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.
9. 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 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.
10. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 39
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 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
-39-
<PAGE> 40
Repayment" form duly completed and 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: Corporate 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
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<PAGE> 41
face of such Security in
every particular without
alteration or enlargement or
any other change whatsoever.
-41-
<PAGE> 42
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> 43
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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<PAGE> 1
EXHIBIT 4.4
[Form of Fixed Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT -- 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.]
[IF DTC IS THE DEPOSITARY, INSERT -- 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.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND
THE REGULATIONS THEREUNDER.]
<PAGE> 2
CUSIP NO. _______
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
(Fixed Rate)
The following terms apply to this Security, as and to the
extent shown below:
PRINCIPAL AMOUNT:
STATED MATURITY DATE:
SPECIFIED CURRENCY: U.S. dollars for all payments unless otherwise specified
below:
- payments of principal and any premium:
- payments of interest:
- Exchange Rate Agent: Goldman, Sachs & Co.
INTEREST RATE: _____% per annum
INTEREST PAYMENT DATE(S):
ORIGINAL ISSUE DATE*:
ORIGINAL ISSUE DISCOUNT SECURITY:
- Total Amount of OID:
- Yield to Maturity:
- Initial Accrual Period OID:
REDEMPTION COMMENCEMENT DATE:
REPAYMENT DATE(S):
REDEMPTION OR REPAYMENT PRICE(S):
DEFEASANCE:
- Full Defeasance:
- Covenant Defeasance:
OTHER TERMS:
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.
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.
- --------------------
* 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.
(Face of Security continued on next page)
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<PAGE> 3
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 _____________, 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 Date(s) 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 15th calendar day (whether or not
a Business Day, as such term is defined in Section 3 on the reverse hereof) next
preceding such Interest Payment Date (a "Regular Record 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 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.
(Face of Security continued on next page)
-3-
<PAGE> 4
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 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
(Face of Security continued on next page)
-4-
<PAGE> 5
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 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,
(Face of Security continued on next page)
-5-
<PAGE> 6
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 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
(Face of Security continued on next page)
-6-
<PAGE> 7
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 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
(Face of Security continued on next page)
-7-
<PAGE> 8
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.
(Face of Security continued on next page)
-8-
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
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_________________________________
Authorized Officer
-9-
<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
If the principal of or interest on this Security is payable in
a Specified Currency other than U.S. dollars,
(Reverse of Security continued on next page)
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<PAGE> 11
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 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
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<PAGE> 12
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. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face
hereof, this Security shall not be redeemable at the option of the Company
before the Stated Maturity Date. If a Redemption Commencement Date is so
specified, and unless otherwise specified on the face hereof, this Security is
subject to redemption upon not less than 30 days' nor more than 60 days' notice
at any time and from time to time on or after the Redemption Commencement Date,
in each case as a whole or in part, at the election of the Company and at the
applicable Redemption Price specified on the face hereof (expressed as a
percentage of the principal amount of this Security to be redeemed), together
with accrued interest to the Redemption Date, but interest installments due on
or prior to such 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.
5. 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
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<PAGE> 13
(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
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
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<PAGE> 14
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.
6. 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 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.
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<PAGE> 15
7. 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.
8. 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.
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.
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<PAGE> 16
9. 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 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.
10. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 17
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
signed, or (ii) a telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or
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<PAGE> 18
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
every particular without
alteration or enlargement or
any other change whatsoever.
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<PAGE> 19
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> 20
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 this assignment must
guaranteed. 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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EXHIBIT 4.5
(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.
BY PURCHASING THIS SECURITY, THE HOLDER AGREES TO CHARACTERIZE
THIS SECURITY FOR ALL U.S. FEDERAL INCOME TAX PURPOSES AS PROVIDED IN SECTION 14
ON THE FACE OF THIS SECURITY.
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<PAGE> 2
CUSIP No. _________
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
___% Mandatory Exchangeable Note due ____
(Subject to Mandatory Exchange for Shares of Common Stock
of [Index Stock Issuer])
The following terms apply to this Security. Capitalized terms
that are not defined the first time they are used in this Security shall have
the meanings indicated elsewhere in this Security:
FACE AMOUNT: $____________
PRINCIPAL AMOUNT: on the Stated Maturity Date, this Security will be mandatorily
exchanged (i) for shares of Stock at the Exchange Rate or (ii) at the option
of the Company, for cash in an amount equal to the number of such shares of
Stock that would otherwise be delivered in such exchange, multiplied by the
Final Stock Price, subject, in either case (i) or (ii), to adjustment as
provided in this Security. The Company may exercise its option to pay the
cash amount in lieu of delivering Stock by giving the Holder of this
Security notice of its election at least ten Business Days prior to the
Stated Maturity Date. If the Company fails to give such notice, it will
deliver or cause to be delivered Stock on the Stated Maturity Date, except
as set forth in the immediately following sentence. If a Market Disruption
Event has occurred on the Determination Date or the Stated Maturity Date, or
on any day in between such dates, the Company may exercise its option to pay
the cash amount in lieu of delivering Stock, whether or not the Company has
given the Holder of this Security the notice referred to in the second
sentence under this heading.
STOCK and STOCK ISSUER: common stock of [Index Stock Issuer], subject to
adjustment as provided in this Security.
EXCHANGE RATE: (i) if the Final Stock Price equals or exceeds the Threshold
Appreciation Price, a number of shares of Stock equal to the Threshold
Fraction or (ii) if the Final
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<PAGE> 3
Stock Price is less than the Threshold Appreciation Price, one share of
Stock, in either case (i) or (ii), for each $_____ of the Outstanding
Face Amount and subject to adjustment as provided in this Security.
INITIAL STOCK PRICE: $_____.
FINAL STOCK PRICE: the Closing Price of one share of Stock on the
Determination Date, subject to adjustment as provided in this Security.
THRESHOLD APPRECIATION PRICE: the Initial Stock Price times ____, which is
$_______.
THRESHOLD FRACTION: the Threshold Appreciation Price divided by the Final Stock
Price.
CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
OTHER TERMS: All terms used in this Security that are not defined in this
Security but are defined in the Indenture referred to on the reverse of
this Security shall have the meanings assigned to them in the
Indenture. References in this Security to numbered sections are to
numbered sections on the face of this Security, unless the context
requires otherwise. Section headings on the face of this Security are
for convenience only and shall not affect the construction of this
Security.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which [the NYSE] [the Nasdaq National Market] (or, if different, the
principal securities market in which the Stock is then quoted or traded), or on
which banking institutions in The City of New York generally, are authorized or
obligated by law, regulation or executive order to close.
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<PAGE> 4
"Closing Price" means, with respect to any security on any
day, the closing sale price or last reported sale price, regular way, for the
security on a per-share or other unit basis (i) on the principal national
securities exchange on which such security is listed for trading on such day,
(ii) in the event such security is not listed on any national securities
exchange, on the Nasdaq National Market System on such day or, (iii) in the
event such security is not quoted in the Nasdaq National Market System on such
day, on such other U.S. national market system that is the primary market for
the trading of such security; provided, however, that, in the event such
security is not listed or quoted as described in clause (i), (ii) or (iii)
above, the Closing Price with respect to such security will be the average, as
determined by the Calculation Agent, of the bid prices for such security
obtained from as many dealers in such security selected by the Calculation Agent
(which may include the Calculation Agent or any affiliate of such agent or of
the Company) as will make such bid prices available to the Calculation Agent
(provided that the number of such dealers need not exceed three). [Modify as
appropriate if primary market is outside United States.]
"Default Amount" means, on any day, an amount, in U.S.
dollars, equal to the cost of having a Qualified Financial Institution expressly
assume, as of such day, the due and punctual payment of the principal of and
interest on this Security, and the performance or observance of every covenant
hereof and of the Indenture on the part of the Company to be performed or
observed with respect to this Security (or to undertake other obligations
providing substantially equivalent economic value to the Holder of this Security
as the Company's obligations hereunder). Such cost will equal (i) the lowest
amount that a Qualified Financial Institution (selected as provided below) would
charge to effect such assumption (or undertaking) plus (ii) the reasonable
expenses (including reasonable attorneys' fees) incurred by the Holder of this
Security in preparing any documentation necessary for such assumption (or
undertaking). During the Default Quotation Period, each of the Holder of this
Security and the Company may request a Qualified Financial Institution to
provide a quotation of the amount it would charge to effect such assumption (or
undertaking) and notify the other in writing of such quotation. The amount
referred to in clause (i) of this paragraph will equal the lowest (or, if there
is only one, the only) quotation so obtained, and as to which notice is
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<PAGE> 5
so given, during the Default Quotation Period; provided that, with respect to
any quotation, the party not obtaining such quotation may object, on reasonable
and significant grounds, to the effectuation of such assumption (or undertaking)
by the Qualified Financial Institution providing such quotation and notify the
other party in writing of such grounds within two Business Days after the last
day of the Default Quotation Period, in which case such quotation will be
disregarded in determining the Default Amount. The "Default Quotation Period"
will be the period beginning on the day the Default Amount first becomes due and
payable and ending on the third Business Day after such due day, unless no such
quotation is so obtained, or unless every such quotation so obtained is objected
to within five Business Days after such due day as provided above, in which case
the Default Quotation Period will continue until the third Business Day after
the first Business Day on which prompt notice is given of such a quotation as
provided above, unless such quotation is objected to as provided above within
five Business Days after such first Business Day, in which case the Default
Quotation Period will continue as provided in this sentence. Notwithstanding the
foregoing, if the Default Quotation Period (and the subsequent two Business Day
objection period) has not ended prior to the Determination Date, then the
Default Amount will equal the Principal Amount.
"Determination Date" means the fifth Business Day prior to
_________; provided, however, that if a Market Disruption Event occurs or is
continuing on such fifth prior Business Day, the Determination Date will be the
next succeeding Business Day on which a Market Disruption Event does not occur
and is not continuing; provided, further, that in no event will the
Determination Date be later than ______ or, if _________ is not a Business Day,
later than the first Business Day after ___________.
"Distribution Property" means securities, cash and/or other
property distributed in any Reorganization Event in respect of the relevant
Reference Amount and, in the case of a Spin-Off Event (as defined in section
11), includes such Reference Amount.
"Ex-Dividend Date" for any dividend or other distribution in
respect of the Stock shall mean the first day on which the Stock trades without
the right to receive such dividend or other distribution.
(Face of Security continued on next page)
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<PAGE> 6
"Market Disruption Event" means, with respect to the Stock, (i) a
suspension, absence or material limitation of trading of the Stock in the
primary market for the Stock for more than two hours of trading or during the
one-half hour period preceding the close of trading in such market, (ii) a
suspension, absence or material limitation of trading in option contracts
related to the Stock, if available, in the primary market for such contracts for
more than two hours of trading or during the one-half hour period preceding the
close of trading in such market or (iii) the Stock does not trade in what was
the primary market for the Stock, in each case (i), (ii) and (iii) as determined
by the Calculation Agent; provided, however, that no such event described in
clause (i), (ii) or (iii) will be a Market Disruption Event unless the
Calculation Agent also determines that such event materially interferes with the
ability of the Company or any of its affiliates to unwind all or a material
portion of any hedge that any of them effects with respect to this Security. For
purposes of determining whether a Market Disruption Event has occurred, (a) a
limitation on the hours or numbers of days of trading in the relevant market
will not constitute a Market Disruption Event if it results from an announced
change in the regular business hours of such market, (b) a decision to
permanently discontinue trading in the relevant option contracts will not
constitute a Market Disruption Event, (c) a suspension or limitation of trading
in option contracts related to the Stock, if available, in the primary market
for such contracts, by reason of (1) a price change exceeding limits set by such
market, (2) an imbalance of orders relating to such contracts or (3) a disparity
in bid and ask quotes relating to such contracts, will, in each case (1), (2)
and (3), constitute a suspension or material limitation of trading in option
contracts related to the Stock and (d) an "absence of trading" in the primary
market on which option contracts related to the Stock are traded will not
include any time when such market is itself closed for trading under ordinary
circumstances. References to the Stock in this paragraph will also be deemed to
refer to any Distribution Property consisting of securities.
"NASD" means the National Association of Securities Dealers, Inc.
"Original Issue Date" means _________________.
"Qualified Financial Institution" means, at any time, a financial
institution organized under the laws of
(Face of Security continued on next page)
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<PAGE> 7
any jurisdiction in the United States of America, Europe or Japan that at such
time has outstanding debt obligations with a stated maturity of one year or less
from the date of issue and rated A-1 or higher by Standard & Poor's Ratings
Group (or any successor) or P-1 or higher by Moody's Investors Service, Inc. (or
any successor) or, in either case, such other comparable rating, if any, then
used by such rating agency.
"Reference Amount" means, initially, one share of Stock and shall be
adjusted, as to the amount (s) and/or type (s) of property comprising the same,
by the Calculation Agent as provided in sections 5 through 12.
"Stated Maturity Date" means ____________ or, if such day is not a
Business Day, the next succeeding Business Day; provided, however, that if the
fifth Business Day preceding _______________ is not the Determination Date, the
Stated Maturity Date will be the fifth Business Day succeeding the
Determination Date; provided, further, that in no event will the Stated
Maturity Date be later than the fifth Business Day after _________________ or,
if _______________ is not a Business Day, later than the sixth Business Day
after _______________.
"Trade Date" means _______________.
_______________________
1. Promise to Pay Principal and Interest
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 hereinafter referred to), for value received, hereby promises to
deliver or pay (or cause to be delivered or paid) to Cede & Co., as nominee for
The Depository Trust Company, or registered assigns, Stock, cash and/or other
property as provided under "Principal Amount" and elsewhere on the face of this
Security, on the Stated Maturity Date, and to pay interest on the Outstanding
Face Amount, from the Original Issue Date or from the most recent date to which
interest has been paid or duly provided for, on _______, _______, _______ and
_______ (each an "Interest Payment Date") in each year, commencing on _______,
and on the Stated Maturity Date, at the rate of ____% per annum, until the
principal of this Security is paid or made available for payment. Any such
installment of interest that is overdue at any time shall also bear interest, at
the rate of ____% per annum (to the extent that payment of such interest shall
be legally enforceable), from the dates such amounts are due until they are paid
or made available for payment. Notwithstanding the foregoing, (i) if the Stated
Maturity Date does not occur on ________, then the Interest Payment Date that
would otherwise occur on _________ shall instead occur on the Stated Maturity
Date and (ii) interest on any overdue amount shall be payable on demand.
2. Payment of Interest
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 fifteenth
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<PAGE> 8
calendar day (whether or not a Business Day) 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 may either 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 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 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.
3. No Fractional Shares
No fractional share will be delivered in exchange for this
Security. If more than one Security of this series and of like tenor shall be
surrendered for exchange on the Stated Maturity Date at one time by the same
Holder, the number of full shares that will be delivered upon exchange will be
calculated on the basis of the aggregate number of Securities so surrendered. In
lieu of any fractional share otherwise deliverable in respect of all Securities
of this series and of like tenor of any Holder which are exchanged at the Stated
Maturity Date, such Holder shall be entitled to receive an amount in cash equal
to the value of such fractional share based on the Closing Price of the relevant
security on the Determination Date. With respect to any security other than a
share of capital stock, a fractional share shall be deemed to mean any
denomination other than an authorized denomination for such security.
4. Principal Amount
The principal of this Security that becomes due and
payable at the Stated Maturity shall be the shares of Stock, together with any
cash payable in lieu of any fractional share and after giving effect to any
adjustment as provided in this Security, that the Company is obligated to
deliver (or cause to be delivered) in exchange for this Security on the Stated
Maturity Date, unless the Company elects to exchange this Security for cash as
provided above under "Principal Amount", in which case such principal shall be
the cash amount that must be paid in exchange for this Security on the Stated
Maturity Date. The principal of this Security that becomes due and payable upon
acceleration of the Maturity hereof after an Event of Default has occurred
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<PAGE> 9
pursuant to the Indenture shall be the Default Amount. When the Stock, cash or
other property referred to in either of the two preceding sentences has been
delivered or paid as provided herein (or such delivery or payment has been duly
provided for), the principal of this Security shall be deemed to have been paid
in full, whether or not this Security shall have been surrendered for payment or
cancellation and regardless of the Face Amount. References to the payment of the
principal of this Security on any day shall be deemed to mean the delivery or
payment of Stock, cash or other property that is deliverable or payable on such
day as provided in this Security. Notwithstanding the foregoing, solely for the
purpose of determining whether any consent, waiver, notice or other action to be
given or taken by Holders of Securities pursuant to the Indenture has been given
or taken by Holders of Outstanding Securities in the requisite aggregate
principal amount, the principal amount of this Security will be deemed to equal
the Face Amount. This Security shall cease to be Outstanding as provided in the
definition of such term in the Indenture or when the principal of this Security
shall be deemed to have been paid in full as provided above and all interest
payable on this Security has been paid (or such payment of interest has been
duly provided for).
5. Antidilution Adjustment
The Calculation Agent shall adjust the Reference Amount as
provided in this Security in respect of each event for which adjustment is
required under sections 6 through 11 (and not in respect of any other event).
(If more than one such event occurs, the Calculation Agent shall adjust the
Reference Amount as so provided for each such event, sequentially, in the order
in which such events occur, and on a cumulative basis.) Having adjusted the
Reference Amount for any and all such events as so provided, the Calculation
Agent shall determine the Final Stock Price, which shall equal the Closing Price
for the Reference Amount as so adjusted on the Determination Date. (If the
Reference Amount is adjusted pursuant to sections 11 so as to consist of amounts
of more than one type of property, then the Final Stock Price shall equal the
sum of the respective Closing Prices or other values for all such amounts of
property on the Determination Date, determined as provided in section 11.)
Having determined the Final Stock Price as so provided, the Calculation Agent
shall determine the Threshold Fraction and the Exchange Rate based on such Final
Stock Price. Having determined the Exchange Rate in this manner, the Calculation
Agent shall multiply such rate by
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the Reference Amount as so adjusted and the resulting product shall be the
amount of Stock that will be deliverable in exchange for each $_____ of the
Outstanding Face Amount of this Security on the Stated Maturity Date. If the
Company elects to pay cash to the Holder of this Security on the Stated Maturity
Date in lieu of exchanging this Security for Stock, then the Calculation Agent
shall determine the cash value of the Stock otherwise deliverable in such
exchange by multiplying the number of shares of Stock so deliverable by the
Closing Price of one share of Stock on the Determination Date (and not by the
Final Stock Price). The Calculation Agent shall make all adjustments no later
than the Determination Date. Notwithstanding any provision of this Security, if
an event for which adjustment is required under sections 6 through 11 occurs,
the Calculation Agent may make the adjustment and any related determinations and
calculations in a manner that differs from that specified in this Security as
necessary to achieve an equitable result. Upon written request by the Holder to
the Calculation Agent, the Calculation Agent will provide the Holder with such
information about adjustments made pursuant to this Security as such agent
determines is appropriate.
6. Stock Splits
If the Stock is subject to a stock split, then at the
opening of business on the first day on which the Stock trades without the right
to receive the stock split, the Calculation Agent will adjust the Reference
Amount to equal the sum of the Reference Amount in effect immediately prior to
such adjustment plus the product of (i) the number of new shares issued in the
stock split with respect to one share of the Stock and (ii) the Reference Amount
in effect immediately prior to such adjustment. The Reference Amount will not be
adjusted, however, unless such first day occurs after the Trade Date and on or
before the Determination Date.
7. Reverse Stock Splits
If the Stock is subject to a reverse stock split, then
once the reverse stock split becomes effective, the Calculation Agent will
adjust the Reference Amount to equal the product of the Reference Amount in
effect immediately prior to such adjustment and the quotient of (i) the number
of shares of outstanding Stock resulting from the reverse stock split becomes
effective divided by (ii) the number of shares of Stock outstanding immediately
before the reverse stock split becomes effective. The
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<PAGE> 11
Reference Amount will not be adjusted, however, unless the reverse stock split
becomes effective after the Trade Date and on or before the Determination Date.
8. Stock Dividends
If the Stock is subject to a stock dividend that is given
ratably to all holders of the Stock, then at the opening of business on the
Ex-Dividend Date, the Calculation Agent will adjust the Reference Amount to
equal the Reference Amount in effect immediately prior to such adjustment plus
the product of (i) the number of shares issued in the Stock dividend with
respect to one share of the Stock and (ii) the Reference Amount in effect
immediately prior to such adjustment. The Reference Amount will not be adjusted,
however, unless such Ex-Dividend Date occurs after the Trade Date and on or
before the Determination Date.
9. Other Dividends and Distributions
There will be no adjustments to the Reference Amount to
reflect dividends or other distributions paid with respect to the Stock other
than (i) stock dividends as provided in section 8, (ii) dividends or other
distributions constituting Spin-Off Events as provided in section 11 below,
(iii) issuances of transferable rights or warrants as provided in section 10 and
(iv) Extraordinary Dividends as provided in this section 9. A dividend or other
distribution with respect to the Stock will be deemed to be an "Extraordinary
Dividend" if the per share value of such dividend or other distribution exceeds
the per share value of the immediately preceding dividend or distribution with
respect to the Stock, if any, that is not an Extraordinary Dividend by an amount
equal to at least 10% of the Closing Price of the Stock on the Business Day
immediately preceding the Ex-Dividend Date for such Extraordinary Dividend. If
an Extraordinary Dividend occurs with respect to the Stock, the Calculation
Agent will adjust the Reference Amount to equal the product of (a) the Reference
Amount in effect immediately prior to such adjustment and (b) a fraction, the
numerator of which is the Closing Price of the Stock on the Business Day
immediately preceding the Ex-Dividend Date and the denominator of which is the
amount by which such Closing Price exceeds the Extraordinary Dividend Amount.
The "Extraordinary Dividend Amount" with respect to an Extraordinary Dividend
for the Stock will equal (1) in the case of cash dividends or other
distributions that constitute regular quarterly dividends, the amount per share
of such Extraordinary Dividend minus
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<PAGE> 12
the amount per share of the immediately preceding dividend or distribution with
respect to the Stock, if any, that is not an Extraordinary Dividend or (2) in
the case of cash dividends or other distributions that do not constitute
regular quarterly dividends, the amount per share of such Extraordinary
Dividend. To the extent an Extraordinary Dividend is not paid in cash, the
value of the non-cash component will be determined by the Calculation Agent. A
distribution on the Stock that constitutes a stock dividend, an issuance of
transferable rights or warrants or a Spin-Off Event and also constitutes an
Extraordinary Dividend will result only in an adjustment to the Reference
Amount pursuant to section 8, 10 or 11, as applicable. The Reference Amount
will not be adjusted pursuant to this section 9 unless the Ex-Dividend Date for
the Extraordinary Dividend occurs after the Trade Date and on or before the
Determination Date.
10. Transferable Rights and Warrants
If the Stock Issuer issues transferable rights or warrants
to all holders of the Stock to subscribe for or purchase the Stock at an
exercise price per share less than the Closing Price of the Stock on the
Business Day immediately before the Ex-Dividend Date for such issuance, then the
Calculation Agent will adjust the Reference Amount by multiplying the Reference
Amount in effect immediately prior to such adjustment by a fraction, the
numerator of which is the number of shares of Stock outstanding at the close of
business on the day before such Ex-Dividend Date plus the number of additional
shares of Stock offered for subscription or purchase under such transferable
rights or warrants, and the denominator of which is the number of shares of
Stock outstanding at the close of business on the day before such Ex-Dividend
Date plus the number of additional shares of Stock that the aggregate offering
price of the total number of shares of Stock so offered for subscription or
purchase would purchase at the Closing Price of the Stock on the Business Day
immediately before such Ex-Dividend Date, with such number of additional shares
being determined by multiplying the total number of shares so offered by the
exercise price of such transferable rights or warrants and dividing the
resulting product by the Closing Price of the Stock on the Business Day
immediately before such Ex-Dividend Date. The Reference Amount will not be
adjusted, however, unless such Ex-Dividend Date occurs after the Trade Date and
on or before the Determination Date.
11. Reorganization Events
If (i) any reclassification or other change of the Stock
occurs, (ii) the Stock Issuer has been subject to a merger, combination or
consolidation and is not the surviving entity or it does survive but all the
shares of
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<PAGE> 13
Stock are exchanged for or converted into Distribution Property, (iii) any
statutory share exchange involving the outstanding Stock and the securities of
another entity occurs (other than in a transaction described in clause (ii)
above), (iv) the Stock Issuer sells or otherwise transfers its property and
assets as an entirety or substantially as an entirety to another entity, (v) the
Stock Issuer issues to all holders of Stock equity securities of an issuer other
than the Stock Issuer (other than in a transaction described in clause (i),
(ii), (iii) or (iv) above) (a "Spin-Off Event"), (vi) an entity other than the
Stock Issuer completes a tender or exchange offer for all the outstanding Stock
or for all of a particular type of Exchange Property or (vii) the Stock Issuer
is liquidated, dissolved or wound up or is subject to a proceeding under any
applicable bankruptcy, insolvency or other similar law (any such event in
clauses (i) through (vii), a "Reorganization Event"), then the Calculation Agent
will adjust the Reference Amount so that the Reference Amount consists of the
respective amounts of each type of Distribution Property distributed in such
Reorganization Event in respect of the Reference Amount as in effect immediately
prior to such adjustment, taken together. Notwithstanding the foregoing,
however, the Calculation Agent will not make any adjustment for a Reorganization
Event unless the event becomes effective -- or, if the event is a Spin-Off
Event, unless the Ex-Dividend Date for the Spin-Off Event occurs -- after the
Trade Date and on or before the Determination Date.
If a Reorganization Event occurs and the Reference Amount is
adjusted pursuant to this section 11, this Security will be exchangeable on
the Stated Maturity Date (subject to any further adjustment provided for in this
Security) as follows:
(a) If the Company does not elect to exchange this Security for
cash, each $______ of the Outstanding Face Amount will be
exchangeable for the respective amounts of each type of
Exchange Property distributed in such Reorganization Event in
respect of the Reference Amount in effect immediately prior to
such adjustment, as determined by the Calculation Agent.
(b) If the Company elects to exchange this Security for cash, each
$______ of the Outstanding Face Amount will be exchangeable
for cash in an amount
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<PAGE> 14
equal to the sum of the respective values of each type of
Distribution Property distributed in such Reorganization Event
in respect of the Reference Amount in effect immediately prior
to such adjustment, as determined by the Calculation Agent.
If the Calculation Agent determines that the Distribution Property so
distributed consists of more than one type of property, as determined by the
Calculation Agent, the Calculation Agent will determine the respective amounts
of such types that will comprise the adjusted Reference Amount so that the value
of each such amount bears the same relationship to the total value of all such
amounts as the value of the corresponding component type of Distribution
Property so distributed bears to the total value of all Distribution Property so
distributed. The Calculation Agent will determine the value of each component
type of Distribution Property, using the Closing Price for any such type
consisting of securities and such other method as it considers reasonable for
any other type. If a holder of the Stock may elect to receive different types or
combinations of types of Distribution Property in the Reorganization Event, the
Distribution Property will be deemed to include the types and amounts thereof
distributed to a holder that makes no election. If a Reorganization Event occurs
and as a result the Reference Amount is adjusted to consist of Distribution
Property, the Calculation Agent will make further adjustments for subsequent
events that affect such Distribution Property or any component type thereof, to
the same extent that it would make adjustments if the Stock were outstanding and
were affected by the same kinds of events. The Final Stock Price used to
calculate the Exchange Rate will be the total value, as determined by the
Calculation Agent on the Determination Date, of all components of the Reference
Amount, with each component having been adjusted on a sequential and cumulative
basis for all relevant events affecting it.
If at any time another Person becomes the successor to the
Stock Issuer, as determined by the Calculation Agent, such successor Person
shall thereupon be deemed to be the Stock Issuer for all purposes of this
Security. If at any time the Reference Amount consists of Distribution Property,
as determined by the Calculation Agent, then all references in this Security to
the "Stock" shall thereupon be deemed to mean such Distribution Property and all
references in this Security to a "share of Stock" shall
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<PAGE> 15
thereupon be deemed to mean a comparable unit of each type of property
comprising such Distribution Property, as determined by the Calculation Agent.
12. Minimum Adjustments
Notwithstanding the foregoing, no adjustment will be
required in respect of any event specified in sections 6 through 10 unless
such adjustment would result in a change of at least 0.1% in the Exchange Rate.
The Exchange Rate resulting from any adjustment shall be rounded up or down, as
appropriate, to the nearest one thousandth, with five ten thousandths being
rounded upward--e.g., 0.12344 will be rounded down to 0.1234 and 0.12345 will be
rounded up to 0.1235.
13. Role Of Calculation Agent
The Calculation Agent will be solely responsible for all
determinations and calculations regarding the Default Amount; whether a Market
Disruption Event has occurred and whether, and if so the dates to which, the
Determination Date and Stated Maturity Date are to be postponed; adjustment of
the Reference Amount and Exchange Rate, including whether any event has occurred
for which adjustment is required and as to the amounts, types and values of
property comprising any Distribution Property and the Reference Amount; the
Closing Price or other value of the Stock or any other property; as to the
Exchange Rate and the amounts and types of property deliverable or payable in
exchange for this Security on the Stated Maturity Date; and all such other
matters as may be specified elsewhere herein as matters to be determined by the
Calculation Agent. The Calculation Agent shall make all such determinations and
calculations in its sole discretion, and absent manifest error all
determinations and calculations made by the Calculation Agent shall be final and
binding on the Company, the Holder and all other Persons having an interest in
this Security, without liability on the part of the Calculation Agent. The
Company shall take such action as shall be necessary to ensure that there is at
all relevant times a financial institution serving as the Calculation Agent
hereunder. The Company may, in its sole discretion at any time and from time to
time, upon written notice to the Trustee, but without notice to the Holder of
this Security, terminate the appointment of any Person serving as the
Calculation Agent and appoint another Person (including any Affiliate of the
Company) to serve as such agent. Insofar as this Security provides for the
Calculation Agent to obtain prices or other information from any institution or
other source, the Calculation Agent may do so from any source or sources of the
kind contemplated hereby notwithstanding that any one or more of such sources
are such agent, Affiliates of such agent or Affiliates of the Company.
14. Tax Characterization
By its purchase of this Security, the Holder, on behalf of
itself and any other Person having a beneficial
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interest in this Security, hereby agrees with the Company (in the absence of an
administrative determination or judicial ruling to the contrary) to characterize
this Security for all U.S. federal income tax purposes as a forward purchase
contract to purchase Stock on the Stated Maturity Date, under the terms of which
contract (i) at the time of issuance of this Security the Holder deposits
irrevocably with the Company a fixed amount of cash equal to the purchase price
of this Security to assure the fulfillment of the Holder's purchase obligation
described in clause (iii) below, which deposit will unconditionally and
irrevocably be applied at the Stated Maturity Date to satisfy such obligation,
(ii) until the Stated Maturity Date the Company will be obligated to pay
interest on such deposit at a rate equal to the stated rate of interest on this
Security (adjusted as appropriate to reflect any difference between the purchase
price and the Face Amount) as compensation to the Holder for the Company's use
of such cash deposit during the term hereof and (iii) at the Stated Maturity
Date such cash deposit unconditionally and irrevocably will be applied by the
Company in full satisfaction of the Holder's obligation under the forward
purchase contract, and the Company will deliver to the Holder the shares of
Stock, or, at the Company's option, an amount of cash equal to the value of the
shares of the Stock, that the Holder is entitled to receive at the Stated
Maturity Date pursuant to the terms of this Security. The Holder, on behalf of
itself and any other Person having a beneficial interest in this Security,
further agrees that, consistent with the above characterization, (i) amounts
paid to the Company in respect of the original issue of this Security will be
treated as allocable in their entirety to the amount of the cash deposit
attributable to this Security and (ii) amounts denominated as interest that are
payable with respect to this Security will be characterized as interest payable
on the amount of such deposit, includible annually in the income of the Holder
as interest income in accordance with such Holder's method of accounting.
Notwithstanding the foregoing, the Company shall not be obligated to segregate
or otherwise set aside any funds, and no act or omission on the part of the
Company or any other Person, and no event or circumstance, shall give rise to
any default or Event of Default under this Security or the Indenture by reason
of any provision of this section 14.
15. Payment and Delivery
Payment of any amount payable on this Security in cash
will be made in such coin or currency of
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<PAGE> 17
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payment or delivery of any Stock, cash or
other property payable or deliverable on this Security will be made to an
account designated by the Holder (in writing to the Company and the Trustee on
or before the Determination Date) and acceptable to the Company or, if no such
account is designated and acceptable as aforesaid, at the office or agency of
the Company maintained for that purpose in The City of New York, provided,
however, that, at the option of the Company, 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; and provided, further, that payment or delivery
at Maturity shall be made only upon surrender of this Security at such office or
agency (unless the Company waives surrender). Notwithstanding the foregoing, if
this Security is a Global Security, any payment or delivery may be made pursuant
to the Applicable Procedures of the Depositary as permitted in said Indenture.
16. Holidays
Notwithstanding any provision of this Security or of the
Indenture, if any delivery or payment of principal or interest would otherwise
be due on this Security on a day (the "Specified Day") that is not a Business
Day, such delivery or payment may be made (or such principal or interest may be
made available for delivery or payment) on the next succeeding Business Day with
the same force and effect as if such delivery or payment were made on the
Specified Day. The provisions of this section shall apply to this Security in
lieu of the provisions of Section 113 of the Indenture.
17. Reverse of This Security
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.
18. Certificate of Authentication
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof 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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<PAGE> 18
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
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____________________________
Authorized Officer
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<PAGE> 19
(Reverse of Security)
Reverse
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, the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. Insofar
as the provisions of the Indenture may conflict with the provisions set forth
on the face of this Security, the latter shall control for purposes of this
Security.
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 designated on
the face hereof.
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 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
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<PAGE> 20
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.
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 reasonable 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
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
interest on this Security as herein provided.
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 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 attorney duly
authorized in writing. Thereupon one or
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more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate Face Amount, will be issued to the
designated transferee or transferees.
This Security, and any other Securities of this series and of
like tenor, are issuable only in registered form without coupons in
denominations of any multiple of $______ that is not less than $50,000. 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, the Trustee nor any such agent shall be affected by notice to the
contrary.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are not defined in this
Security but are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
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<PAGE> 1
Exhibit 4.6
(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.
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CUSIP
NO. ____________
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
__% Exchangeable Note due _____
(Exchangeable for Common Stock of [Index Stock Issuer])
The following terms apply to this Security. Capitalized terms
that are not defined the first time they are used in this Security shall have
the meanings indicated elsewhere in this Security.
FACE AMOUNT: $__________
PRINCIPAL AMOUNT: on the Stated Maturity Date, the Company will pay the Holder
cash equal to 100% of the Outstanding Face Amount, unless (i) the
Holder exercises the Exchange Right, (ii) the Company exercises the
Call Right or (iii) an Automatic Exchange occurs, all as provided on
the face of this Security.
EXCHANGE RIGHT: the Holder may elect to exchange this Security for Stock at the
Exchange Rate, provided that the Company may elect to pay the Holder
the cash value of the Stock otherwise deliverable in any such exchange
instead of delivering such Stock, all as provided in section 5 on the
face of this Security.
EXCHANGE RATE: _____ shares of Stock for each $1,000 of the Outstanding Face
Amount exchanged, subject to adjustment as provided on the face of this
Security.
CALL RIGHT: the Company may redeem this Security as provided in section 6 on
the face of this Security.
STOCK and STOCK ISSUER: common stock of [Index Stock Issuer], subject to
adjustment as provided on the face of this Security.
AUTOMATIC EXCHANGE: an Automatic Exchange of this Security may occur on the
Stated Maturity Date or on any Call Date, as provided in section 7 on
the face of this Security.
CALCULATION AGENT: Goldman, Sachs & Co.
DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
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OTHER TERMS:
All terms used in this Security that are not defined in this
Security but are defined in the Indenture referred to on the reverse of this
Security shall have the meanings assigned to them in the Indenture. References
in this Security to numbered sections are to numbered sections on the face of
this Security, unless the context requires otherwise. Section headings on the
face of this Security are for convenience only and shall not affect the
construction of this Security.
"Authorized Denomination" means, with respect to this
security, a Face Amount of $10,000 or a multiple of $1,000 in excess of $10,000.
"Automatic Exchange" means an exchange of the Outstanding Face
Amount of this Security for cash, Stock or other property, as provided in
section 7.
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which [the NYSE] [the Nasdaq National Market] (or, if different, the
principal securities market in which the Stock is then quoted or traded), or on
which banking institutions in The City of New York generally, are authorized or
obligated by law, regulation or executive order to close.
"Call Date" means the day specified by the Company in a Call
Notice for redemption of the Outstanding Face Amount of this Security, unless
the Call Date is postponed to a later date as provided in section 7(c), in which
case the Call Date shall be such later date; provided, however, that a Call Date
shall in all cases be after _____. As applied to this Security, the term
"Redemption Date" as used in the Indenture shall mean the Call Date, if any.
"Call Notice" means a notice of redemption given by the
Company to the Holder of this Security as provided in section 6.
"Call Notice Date" means any Business Day on which the Company
gives a Call Notice.
"Closing Price" means, with respect to any security on any
day, the closing sale price or last reported
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sale price, regular way, for the security on a per-share or other unit basis (i)
on the principal national securities exchange on which such security is listed
for trading on such day, (ii) in the event such security is not listed on any
national securities exchange, on the Nasdaq National Market System on such day
or (iii) in the event such security is not quoted in the Nasdaq National Market
System on such day, on such other U.S. national market system that is the
primary market for the trading of such security; provided, however, that, in the
event such security is not listed or quoted as described in clause (i), (ii) or
(iii) above, the Closing Price with respect to such security will be the
average, as determined by the Calculation Agent, of the bid prices for such
security obtained from as many dealers in such security selected by the
Calculation Agent (which may include the Calculation Agent or any affiliate of
such agent or of the Company) as will make such bid prices available to the
Calculation Agent (provided that the number of such dealers need not exceed
three). [Modify as appropriate if primary market is outside United States.]
"Default Amount" means, on any day, an amount, in U.S.
dollars, equal to the cost of having a Qualified Financial Institution expressly
assume, as of such day, the due and punctual payment of the principal of and
interest on this Security, and the performance or observance of every covenant
hereof and of the Indenture on the part of the Company to be performed or
observed with respect to this Security (or to undertake other obligations
providing substantially equivalent economic value to the Holder of this Security
as the Company's obligations hereunder). Such cost will equal (i) the lowest
amount that a Qualified Financial Institution (selected as provided below) would
charge to effect such assumption (or undertaking) plus (ii) the reasonable
expenses (including reasonable attorneys' fees) incurred by the Holder of this
Security in preparing any documentation necessary for such assumption (or
undertaking). During the Default Quotation Period, each of the Holder of this
Security and the Company may request a Qualified Financial Institution to
provide a quotation of the amount it would charge to effect such assumption (or
undertaking) and notify the other in writing of such quotation. The amount
referred to in clause (i) of this paragraph will equal the lowest (or, if there
is only one, the only) quotation so obtained, and as to which notice is so
given, during the Default Quotation Period; provided
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<PAGE> 5
that, with respect to any quotation, the party not obtaining such quotation may
object, on reasonable and significant grounds, to the effectuation of such
assumption (or undertaking) by the Qualified Financial Institution providing
such quotation and notify the other party in writing of such grounds within two
Business Days after the last day of the Default Quotation Period, in which case
such quotation will be disregarded in determining the Default Amount. The
"Default Quotation Period" will be the period beginning on the day the Default
Amount first becomes due and payable and ending on the third Business Day after
such due day, unless no such quotation is so obtained, or unless every such
quotation so obtained is objected to within five Business Days after such due
day as provided above, in which case the Default Quotation Period will continue
until the third Business Day after the first Business Day on which prompt notice
is given of such a quotation as provided above, unless such quotation is
objected to as provided above within five Business Days after such first
Business Day, in which case the Default Quotation Period will continue as
provided in this sentence. Notwithstanding the foregoing, if the Default
Quotation Period (and the subsequent two Business Day objection period) has not
ended prior to the Determination Date, then the Default Amount will equal the
Principal Amount.
"Determination Date" means the fifth Business Day prior to
_______; provided, however, that if a Market Disruption Event occurs or is
continuing on each of the fifth, sixth and seventh Business Days prior to
______, the Determination Date will be the next succeeding Business Day on which
a Market Disruption Event does not occur and is not continuing; provided,
further, that in no event will the Determination Date be later than _______ or,
if ______ is not a Business Day, later than the first Business Day after
________.
"Distribution Property" means securities, cash and/or other
property distributed in any Reorganization Event in respect of the relevant
Reference Amount and, in the case of a Spin-Off Event, includes such Reference
Amount.
"Exercise Requirements" means, with respect to any exchange of
this Security pursuant to section 5, all the following requirements that apply
to such exchange:
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<PAGE> 6
(i) Both the Trustee and the Calculation Agent must receive a
properly completed and signed Notice of Exchange specifying the
Outstanding Face Amount of this Security to be exchanged. In each case,
such notice must be delivered by facsimile to the applicable number and
location specified in the Notice of Exchange (or to such other number
and location, or in such other manner, as the Trustee or Calculation
Agent, as applicable, may specify to the Holder).
(ii) If this Security is not a Global Security, the Trustee
must receive the certificate representing this Security. In each case,
such delivery must be made by mail, by hand or by reputable commercial
courier, to the office of the Trustee, and to the attention of its
representative, specified in the Notice of Exchange (or to such other
location, or in such other manner, as the Trustee may specify to the
Holder).
(iii) If this Security is not a Global Security and the
Exchange Date occurs after a Regular Record Date and before the related
Interest Payment Date, the Trustee must receive cash in an amount equal
to the interest payable on the portion of this Security to be
exchanged, as provided in clause (iv) of section 5. In each case, such
delivery must be made by check, as provided in clause (ii) above, or by
wire transfer to an account specified by the Trustee (or in such other
manner as the Trustee may specify).
(iv) If this Security is a Global Security, the beneficial
interest in the portion of the Security to be exchanged must be
transferred on the books of the Depositary to the account of the
Trustee at the Depositary and the Trustee must receive and accept the
transfer, all in accordance with the applicable procedures of the
Depositary. If the Trustee receives and accepts the transfer by 3:00
P.M., New York City time, on any Business Day, the requirement in this
clause (iv) will be deemed satisfied as of 11:00 A.M.
on the same Business Day.
The Calculation Agent will, in its sole discretion, resolve any questions that
may arise as to the validity of a Notice
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<PAGE> 7
of Exchange or as to whether and when the Exercise Requirements have been
satisfied in respect of any exchange.
"Exchange Date" means, with respect to any exchange of this
Security pursuant to section 5, the fifth Business Day after the Exchange Notice
Date for such exchange. Notwithstanding the foregoing, the Exchange Date may be
postponed as provided in section 5, in which case the Exchange Date shall be the
date to which it is so postponed.
"Exchange Notice Date" means, with respect to any exchange of
this Security pursuant to section 5, the first Business Day on which all
Exercise Requirements have been satisfied with respect to such exchange by 11:00
A.M., New York City time, on such day, provided that such first Business Day
must occur no later than the earlier of (i) the third Business Day prior to the
Determination date and (ii) any Call Notice Date. If the Exercise Requirements
have been satisfied with respect to an exchange on a Business Day but after
11:00 A.M., New York City time, the next Business Day will be the Exchange
Notice Date for such exchange, subject to the proviso in the prior sentence.
Notwithstanding the foregoing, the Exchange Notice Date may be postponed as
provided in section 5, in which case the Exchange Notice Date shall be the date
to which it is so postponed.
"Ex-Dividend Date" for any dividend or other distribution in
respect of the Stock shall mean the first day on which the Stock trades without
the right to receive such dividend or other distribution.
"Market Disruption Event" means, with respect to the Stock,
(i) a suspension, absence or material limitation of trading of the Stock in the
primary market for the Stock for more than two hours of trading or during the
one-half hour period preceding the close of trading in such market, (ii) a
suspension, absence or material limitation of trading in option contracts
related to the Stock, if available, in the primary market for such contracts for
more than two hours of trading or during the one-half hour period preceding the
close of trading in such market or (iii) the Stock does not trade in what was
the primary market for the Stock, in each case (i), (ii) and (iii) as determined
by the Calculation Agent; provided, however, that no such event described in
clause (i), (ii) or (iii) will be a Market
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<PAGE> 8
Disruption Event unless the Calculation Agent also determines that such event
materially interferes with the ability of the Company or any of its affiliates
to unwind all or a material portion of any hedge that any of them effects with
respect to this Security. For purposes of determining whether a Market
Disruption Event has occurred, (a) a limitation on the hours or numbers of days
of trading in the relevant market will not constitute a Market Disruption Event
if it results from an announced change in the regular business hours of such
market, (b) a decision to permanently discontinue trading in the relevant option
contracts will not constitute a Market Disruption Event, (c) a suspension or
limitation of trading in option contracts related to the Stock, if available, in
the primary market for such contracts, by reason of (1) a price change exceeding
limits set by such market, (2) an imbalance of orders relating to such contracts
or (3) a disparity in bid and ask quotes relating to such contracts, will, in
each case (1), (2) and (3), constitute a suspension or material limitation of
trading in option contracts related to the Stock and (d) an "absence of trading"
in the primary market on which option contracts related to the Stock are traded
will not include any time when such market is itself closed for trading under
ordinary circumstances. References to the Stock in this paragraph will also be
deemed to refer to any Distribution Property consisting of securities.
"NASD" means the National Association of Securities Dealers,
Inc.
"Notice of Exchange" means a properly completed and signed
notice substantially in the form attached to the Company's prospectus supplement
dated _______ relating to this Security (or such other form as is acceptable to
the Trustee and the Calculation Agent). Once given, a Notice of Exchange may not
be revoked.
"NYSE" means the New York Stock Exchange, Inc.
"Original Issue Date" means __________.
"Qualified Financial Institution" means, at any time, a
financial institution organized under the laws of any jurisdiction in the United
States of America, Europe or Japan that at such time has outstanding debt
obligations with a stated maturity of one year or less from the date of issue
and rated A-1 or higher by Standard & Poor's Ratings
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<PAGE> 9
Group (or any successor) or P-1 or higher by Moody's Investors Service, Inc. (or
any successor) or, in either case, such other comparable rating, if any, then
used by such rating agency.
"Redemption Price" means the amount payable in respect of this
Security on a Call Date pursuant to section 6. The Redemption Price payable on
any Call Date does not include any accrued interest payable in respect of this
Security.
"Reference Amount" means, initially, the amount of Stock
specified above under "Exchange Rate" and shall be adjusted, as to the amount(s)
and/or type(s) of property comprising the same, by the Calculation Agent as
provided in sections 8 through 15.
"Stated Maturity Date" means ______ or, if such day is not a
Business Day, the next succeeding Business Day; provided, however, that if the
fifth Business Day preceding _______ is not the Determination Date, the Stated
Maturity Date will be the fifth Business Day succeeding the Determination Date;
provided, further, that in no event will the Stated Maturity Date be later than
the fifth Business Day after ______ or, if ________ is not a Business Day, later
than the sixth Business Day after ______.
"Trade Date" means ________.
________________________
1. Promise to Pay Principal and Interest
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
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., as nominee for The Depository Trust Company, or registered assigns, as
principal, the Outstanding Face Amount on the Stated Maturity Date, subject to
the other provisions of this Security, and to pay interest on the Outstanding
Face Amount, from the Original Issue Date or from the most recent date to which
interest has been paid or duly provided for, on __________ and
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______________ (each an "Interest Payment Date") in each year, commencing on
_____________, and at the Maturity of the principal at the rate of ___% per
annum, until the principal of this Security is paid or made available for
payment. Any such instalment of interest that is overdue at any time shall also
bear interest, at the rate of ___% per annum (to the extent that payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Notwithstanding the
foregoing, (i) if the Stated Maturity Date does not occur on ________, then the
Interest Payment Date that would otherwise occur on _________ shall instead
occur on the Stated Maturity Date, (ii) interest on any overdue amount shall be
payable on demand and (iii) the accrual and payment of interest on any portion
of the Face Amount exchanged by the Holder pursuant to section 5 or subject to
an Automatic Exchange pursuant to section 7 shall be subject to the applicable
provisions of those sections.
2. Payment of Interest
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 Payment Date. If this Security is a Global Security, the Regular Record
Date for an Interest Payment Date shall be the first Business Day before such
Interest Payment Date. If this Security is not a Global Security, the Regular
Record date for an Interest Payment Date shall be the fifteenth calendar day
(whether or not a Business Day) 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 may either 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 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 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
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required by such exchange, all as more fully provided in the
Indenture.
3. No Fractional Shares
No fractional shares will be delivered in exchange for this
Security. If more than one Security of this series and of like tenor are to be
exchanged for Stock on the same date and by the same Holder pursuant to section
5, 7(a) or 7(b), the number of full shares that will be delivered upon exchange
will be calculated on the basis of the aggregate number of such Securities. If
this Security is a Global Security and two or more portions of this Security are
to be exchanged for Stock on the same date pursuant to two or more Notices of
Exchange, the number of full shares that will be delivered upon exchange will be
calculated separately with respect to each such Notice of Exchange, on the basis
of the Face Amount to be exchanged pursuant to each such Notice of Exchange. In
lieu of any fractional share otherwise deliverable in exchange for this
Security, the Holder shall be entitled to receive an amount in cash equal to the
value of such fractional share based on the following: (i) for an exchange
pursuant to section 5, the Closing Price of the relevant security on the
relevant Exchange Notice Date and (ii) for an exchange pursuant to section 7(a)
or 7(b), the Average Closing Price of the relevant security, as determined
pursuant to such section (or such other price as may apply in lieu thereof
pursuant to section 7(c)). With respect to any security other than a share of
capital stock, a fractional share shall be deemed to mean any denomination other
than an authorized denomination for such security.
4. Principal Amount
The principal of this Security that becomes due and payable on
the Stated Maturity Date shall be the Outstanding Face Amount unless an
Automatic Exchange is to occur on such date, in which case such principal shall
be the cash, Stock or other property that the Company is obligated to deliver
(or cause to be delivered) in such Automatic Exchange. The principal of this
Security that becomes due and payable on a Call Date shall be the Redemption
Price unless an Automatic Exchange is to occur on such date, in which case such
principal shall be the cash, Stock or other property that the Company is
obligated to deliver (or cause to be delivered) in such Automatic Exchange. The
principal of this Security that becomes due
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and payable on any Exchange Date shall be the cash, Stock or other property that
the Company is obligated to deliver in exchange for this Security (or any
portion hereof being exchanged) on such date. The principal of this Security
that becomes due and payable upon acceleration of the Maturity hereof after an
Event of Default has occurred pursuant to the Indenture shall be the Default
Amount. When the cash, Stock or other property referred to above in this section
4 has been paid or delivered as provided herein (or such payment or delivery has
been duly provided for), the principal of this Security (or the portion hereof
being exchanged, as the case may be) shall be deemed to have been paid in full,
whether or not this Security shall have been surrendered for payment or
cancellation. References to the payment of the principal of this Security on any
day shall be deemed to mean the delivery or payment of cash, Stock or other
property that is payable or deliverable on such day as provided in this
Security. Notwithstanding the foregoing, solely for the purpose of determining
whether any consent, waiver, notice or other action to be given or taken by
Holders of Securities pursuant to the Indenture has been given or taken by
Holders of Outstanding Securities in the requisite aggregate principal amount,
the principal amount of this Security will be deemed to equal the Face Amount.
This Security shall cease to be Outstanding as provided in the definition of
such term in the Indenture or when the principal of this Security shall be
deemed to have been paid in full as provided above and all interest payable on
this Security has been paid (or such payment of interest has been duly provided
for).
5. Holder's Exchange Right
The Holder may elect to exchange the Outstanding Face Amount
of this Security, in whole or in part at any time and from time to time, for
shares of Stock at the Exchange Rate, provided that the Exercise Requirements
with respect to such exchange have been satisfied no later than 11:00 A.M., New
York City time, on the earlier of (i) the third Business Day before the
Determination Date and (ii) any Call Notice Date. If the Holder makes such an
election, the Company may choose, at its sole option, either to deliver such
shares of Stock to the Holder (subject to section 3 above) or to pay cash to the
Holder in an amount equal to the value of such shares (including any fractional
share), which value shall equal the number of such shares
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multiplied by the Closing Price of the Stock on the applicable Exchange Notice
Date. The Company shall make (or cause its agent to make) the delivery or
payment due in any such exchange on the applicable Exchange Date and in the
manner provided in section 17 below. No election to exchange this Security
pursuant to this section 5 shall be effective unless the Exercise Requirements
are satisfied with respect to such exchange at or prior to the date and time
specified above. The right of the Holder to exchange the Security pursuant to
this section 5 is herein called the "Exchange Right".
If the Holder exercises the Exchange Right and if the Company
chooses to pay cash instead of delivering Stock on the applicable Exchange Date,
the Company will notify the Holder of its election no later than the Business
Day after the related Exchange Notice Date. If the Holder exercises the Exchange
Right and the Company does not notify the Holder of such election on the
Business Day after the related Exchange Notice Date, the Company will deliver
shares of Stock (subject to section 3) on the Exchange Date, except as provided
below in this section 5. The Company will give any such notice by telephone or
telecopier to the number specified in the applicable Notice of Exchange by the
Person who signs such notice.
If a Market Disruption Event occurs or is continuing on a day
that would otherwise be an Exchange Notice Date, then such Exchange Notice Date
will be postponed to the first succeeding Business Day on which a Market
Disruption Event does not occur and is not continuing. In no event, however,
will any Exchange Notice Date be postponed by more than five Business Days. If
an Exchange Notice Date is postponed, the related Exchange Date will also be
postponed, to the fifth Business Day after the day to which such Exchange Notice
Date is postponed. If an Exchange Notice Date is postponed to the last possible
day, and a Market Disruption Event occurs or is continuing on that day, that day
will nevertheless be such Exchange Notice Date.
In the event that a Market Disruption Event occurs or is
continuing on an Exchange Notice Date or on any later day through and including
the related Exchange Date, the Company may choose to pay cash instead of
delivering Stock on such Exchange Date, even if the Company has not notified
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<PAGE> 14
the Holder of its election to pay cash as provided above in this section 5.
If the Company elects to pay the cash value of the Stock
otherwise deliverable on an Exchange Date but the Closing Price of the Stock
that must be used to determine such cash value is not available on the related
Exchange Notice Date, either because of a Market Disruption Event or for any
other reason, the Calculation Agent will nevertheless determine that Closing
Price based on its assessment, made in its sole discretion, of the market value
of the Stock on such Exchange Notice Date. This paragraph shall apply whether
the election to pay cash is made pursuant to the prior paragraph or the second
paragraph of this section 5.
Partial exchanges of this Security will be permitted only if
the portion of the Face Amount exchanged is a multiple of $1,000 and only if the
unexchanged portion is an Authorized Denomination. References herein to any
portion of this Security being exchanged shall mean the entire amount of this
Security if the entire amount is being exchanged.
If the Holder exercises the Exchange Right, the applicable
provisions of this paragraph will apply to the exchanged portion of this
Security.
(i) If the applicable Exchange Date occurs on an Interest
Payment Date, interest will accrue on the exchanged portion to, but
excluding, such Interest Payment Date. The interest that accrues on
such exchanged portion to such Interest Payment Date, excluding any
part of such interest that becomes payable prior to such Interest
Payment Date, shall be payable on such Interest Payment Date as
provided in section 2 above.
(ii) If the applicable Exchange Date occurs after an Interest
Payment Date but on or before the next Regular Record Date, interest
will accrue on the exchanged portion only to, and excluding, such prior
Interest Payment Date and no interest will accrue or be payable for the
later period that precedes such Exchange Date.
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<PAGE> 15
(iii) If the applicable Exchange Date occurs on or before the
first Regular Record Date, interest will not accrue or be payable on
such exchanged portion.
(iv) If this Security is not a Global Security and the
applicable Exchange Date occurs after a Regular Record Date but before
the related Interest Payment Date, interest will accrue on the
exchanged portion of this Security to, but excluding, such Interest
Payment Date. The interest that accrues on such exchanged portion to
such Interest Payment Date, excluding any part of such interest that
becomes payable prior to such Interest Payment Date, will be payable on
such Interest Payment Date as provided in section 2 above; provided,
however, that the Holder exercising the Exchange Right with respect to
such portion will be required to pay to the Trustee (for the benefit of
the Company), no later than 11:00 A.M., New York City time, on the
Exchange Notice Date, cash in an amount equal to the interest that
becomes payable on the exchanged portion of this Security on such
Interest Payment Date.
Notwithstanding the foregoing, if the Company defaults on its obligation to make
(or cause to be made) the delivery or payment due in respect of any portion of
this Security on an Exchange Date pursuant to this section 5, interest shall
accrue on such portion from the Exchange Date to the day such delivery or
payment is made or made available and shall be payable on demand of the Holder.
6. Company's Call Right
This Security is subject to redemption upon [not less than 8
Business Days' nor more than 15 Business Days'] [not less than 15 days' nor more
than 30 days'] notice, at any time after ____________, in whole but not in part,
at the election of the Company for cash at [a Redemption Price equal to __% of
the Outstanding Face Amount on the Call Date, plus accrued interest to the Call
Date] [the following Redemption Prices, which are expressed as a percentage of
the Outstanding Face Amount on the Call Date: If redeemed during the 12-month
period beginning on ____ of the years indicated,
Year Redemption Price
%
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and thereafter at a Redemption Price equal to __% of the Outstanding Face Amount
on the Call Date, together in the case of any such redemption with accrued
interest to the Call Date]. Interest instalments whose Stated Maturity is on or
prior to a Call Date will be payable as provided in section 2.
The Company shall not give a Call Notice that results in a
Call Date later than the Stated Maturity Date. A Call Notice, once given, shall
be irrevocable.
If the Company gives a Call Notice, this Security will be
subject to the provisions of section 7(b). If an Automatic Exchange is to occur
pursuant to section 7(b), then, notwithstanding the foregoing, this Security
shall not be subject to redemption pursuant to this section 6. If an Automatic
Exchange is not to occur pursuant to section 7(b), then this Security shall be
redeemed on the Call Date as provided in this section 6 and in the Indenture (as
modified by this section 6).
7. Automatic Exchange
(a) On the Stated Maturity Date. If the Holder does not
exercise the Exchange Right for the entire Outstanding Face Amount of this
Security by 11:00 A.M., New York City time, on the third Business Day before the
Determination Date and the Company does not give a Call Notice, the provisions
of this section 7(a) will apply. On the Determination Date, the Calculation
Agent (i) will determine the number of shares of Stock (including any fractional
share) that would be deliverable in exchange for the Outstanding Face Amount on
such date at the Exchange Rate, if such amount were to be exchanged on such date
pursuant to section 5, and (ii) will multiply such number of shares by the
average of the Closing Prices of the Stock on each of the three consecutive
Business Days ending on and including the Determination Date, subject to section
7(c) below. The resulting amount determined pursuant to the prior sentence and
section 7(c), as applicable, is herein called the "Section 7(a) Amount".
If the Section 7(a) Amount exceeds the sum of (i) the
Outstanding Face Amount on the Determination Date plus (ii) the amount of the
regular interest instalment that would become due on such Outstanding Face
Amount on the
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<PAGE> 17
Stated Maturity Date if such Outstanding Face Amount were not exchanged or
redeemed, then, without any action being taken by the Holder, this Security will
automatically be exchanged as follows. On the Stated Maturity Date, either the
Company will deliver to the Holder the shares of Stock specified in clause (i)
of the prior paragraph or, at the Company's option, the Company will pay to the
Holder cash in an amount equal to the Section 7(a) Amount. The Company will be
entitled to select either of these alternatives at its option and without
notifying the Holder or any other Person of its selection. In determining the
amounts specified in this paragraph and the prior paragraph, the Outstanding
Face Amount on the Determination Date shall be deemed to exclude any portion
thereof to be exchanged pursuant to section 5 on an Exchange Date that occurs on
or after the Determination Date. In addition, if the Outstanding Face Amount on
the Stated Maturity Date is lower than the Face Amount deemed to be Outstanding
on the Determination Date, then the number of shares to be delivered or the
amount of cash to be paid on the Stated Maturity Date pursuant to this section
7(a) will be proportionately reduced.
If the Section 7(a) Amount does not exceed the sum specified
in the prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(a) and the Company will pay the Holder the
Outstanding Face Amount on the Stated Maturity Date as provided in section 1.
If any portion of this Security is subject to an Automatic
Exchange pursuant to this section 7(a), no interest will accrue or be payable on
such portion in respect of the period from the Interest Payment Date prior to
the Stated Maturity Date to the Stated Maturity Date. If the Company defaults on
its obligation to make the delivery or payment due in respect of any portion of
the Security in such an Automatic Exchange, interest shall accrue on such
portion from the Stated Maturity Date to the day such delivery or payment is
made or made available and shall be payable on demand of the Holder.
(b) On a Call Date. If the Company gives a Call Notice, the
provisions of this section 7(b) will apply. On the Section 7(b) Calculation Day
(as defined in section 7(c)), the Calculation Agent (i) will determine the
number of shares of Stock (including any fractional share) that
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<PAGE> 18
would be deliverable in exchange for the Outstanding Face Amount on such day at
the Exchange Rate, if such amount were to be exchanged on such day pursuant to
section 5, and (ii) will multiply such number of shares by the average of the
Closing Prices of the Stock on each of the three consecutive Business Days
beginning on and including the Call Notice Date, subject to section 7(c) below.
The resulting amount determined pursuant to the prior sentence and section 7(c),
as applicable, is herein called the "Section 7(b) Amount".
If the Section 7(b) Amount exceeds the sum of (i) the
Redemption Price that would be payable on the Call Date in respect of the
Outstanding Face Amount on the Section 7(b) Calculation Day plus (ii) the amount
of interest that will have accrued on such Outstanding Face Amount from and
after the last Interest Payment Date before the Call Date to the Call Date,
then, without any action being taken by the Holder, this Security will
automatically be exchanged as follows. On the Call Date, either the Company will
deliver to the Holder the shares of Stock specified in clause (i) of the prior
paragraph or, at the Company's option, the Company will pay to the Holder cash
in an amount equal to the Section 7(b) Amount. The Company will be entitled to
select either of these alternatives at its option and without notifying the
Holder or any other Person of its selection. In determining the amounts
specified in this paragraph and the prior paragraph, the Outstanding Face Amount
on the Section 7(b) Calculation Day will be deemed to exclude any portion
thereof to be exchanged pursuant to section 5 on an Exchange Date that occurs on
or after the Section 7(b) Calculation Day. In addition, if the Outstanding Face
Amount on the Call Date is lower than the Face Amount deemed to be Outstanding
on the Section 7(b) Calculation Day, then the number of shares to be delivered
or the amount of cash to be paid on the Call Date pursuant to this section 7(b)
will be proportionately reduced.
If the Section 7(b) Amount does not exceed the sum specified
in the prior paragraph, then this Security shall not be subject to an Automatic
Exchange pursuant to this section 7(b) and the Company will redeem the
Outstanding Face Amount on the Call Date as provided in section 6.
If any portion of this Security is subject to an Automatic
Exchange pursuant to this section 7(b), no interest will accrue or be payable on
such portion in
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<PAGE> 19
respect of the period from the Interest Payment Date prior to the Call Date to
the Call Date. If the Company defaults on its obligation to make the delivery or
payment due in respect of any portion of this Security in such an Automatic
Exchange, interest shall accrue on such portion from the Call Date to the day
such delivery or payment is made or made available and shall be payable on
demand of the Holder.
(c) Deferred Pricing. In determining the Section 7(a) Amount
or the Section 7(b) Amount, the Calculation Agent shall follow the applicable
provisions of clauses (i) through (iv) below. For the purposes of this section
7(c), the three-Business Day pricing periods referred to in sections 7(a) and
7(b) are each called a "Pricing Period" and the averages of the Closing Prices
specified in sections 7(a) and 7(b) are each called an "Average Closing Price".
(i) If a Market Disruption Event occurs or is continuing on
only one Business Day during the relevant Pricing Period, the
Calculation Agent will use, instead of the relevant Average Closing
Price, the average of the Closing Prices on the two other Business Days
during that period.
(ii) If a Market Disruption Event occurs or is continuing on
only two Business Days during the relevant Pricing Period, the
Calculation Agent will use, instead of the relevant Average Closing
Price, the Closing Price on the one other Business Day during that
period.
(iii) If a Market Disruption Event occurs or is continuing on
all three Business Days during the relevant Pricing Period, then the
Calculation Agent will use, instead of the relevant Average Closing
Price, the Closing Price on the first Business Day after that period on
which no Market Disruption Event occurs or is continuing. Such first
Business Day, however, shall not be later than the Determination Date,
in the case of an Automatic Exchange on the Stated Maturity Date, or
later than the fifth Business Day after the relevant Pricing Period, in
the case of an Automatic Exchange on the Call Date. Such first Business
Day is herein called a "Deferred Pricing Date" and such latest Business
Day on which a Deferred Pricing Date may occur is herein called the
"Latest
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<PAGE> 20
Possible Pricing Date". (The Deferred Pricing Date may
occur on the Latest Possible Pricing Date.)
(iv) If a Market Disruption Event occurs or is continuing on
each Business Day during the relevant Pricing Period and on each
subsequent Business Day through and including the Latest Possible
Pricing Date, the Calculation Agent will nevertheless determine the
Closing Price of the Stock (and the Deferred Pricing Date will occur)
on the Latest Possible Pricing Date. If the Calculation Agent
determines that the Closing Price is not available on the Latest
Possible Pricing Date, either because of a Market Disruption Event or
for any other reason, the Calculation Agent will determine the Closing
Price based on its assessment, made in its sole discretion, of the
market value of the Stock on the Latest Possible Pricing Date. The
Calculation Agent will use the Closing Price on the Latest Possible
Pricing Date, however determined, instead of the Average Closing Price.
If a Call Notice is given and the Calculation Agent uses the Closing Price
(however determined as aforesaid) on a Deferred Pricing Date as provided in
clause (iii) or (iv) above, the Call Date shall be the later of (x) the fifth
Business Day after such Deferred Pricing Date and (y) the original Call Date
specified in the Call Notice. If the date described in clause (x) is later than
the date in clause (y), the Call Date shall automatically be postponed to such
later date, without notice to the Holder or any other Person and whether this
Security is redeemed or an Automatic Exchange occurs on the Call Date. If a Call
Notice is given, the last day of the relevant Pricing Period will be the
"Section 7(b) Calculation Day" unless the Calculation Agent uses a Closing Price
on the Deferred Pricing Date to determine the Section 7(b) Amount, in which case
the "Section 7(b) Calculation Day" will be such Deferred Pricing Date.
8. Antidilution Adjustment.
The Calculation Agent shall adjust the Exchange Rate as
provided in this Security in respect of each event for which adjustment is
required under sections 9 through 14 (and not in respect of any other event).
(If more than one such event occurs, the Calculation Agent shall adjust the
Exchange Rate as so provided for each such event,
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<PAGE> 21
sequentially, in the order in which such events occur, and on a cumulative
basis.) With respect to any portion of this Security to be exchanged, including
any portion subject to an Automatic Exchange, the Calculation Agent will make
the required determinations and adjustments no later than the related Exchange
Notice Date. Solely for this purpose, the Exchange Notice Date for an Automatic
Exchange will be the last Business Day for which the Closing Price or other
market value of the Stock is used to determine the amount of cash payable in
such exchange. If any event requiring adjustment occurs during a Pricing Period
for an Automatic Exchange, so that one or more but not all the Closing Prices
used to calculate the relevant Average Closing Price are affected by the event,
the Calculation Agent will make any additional adjustments it considers
necessary to give appropriate effect to this fact.
Notwithstanding any provision of this Security, if an event
for which adjustment is required under sections 9 through 14 occurs, the
Calculation Agent may make the adjustment and any related determinations and
calculations in a manner that differs from that specified in this Security as
necessary to achieve an equitable result. Upon written request by the Holder to
the Calculation Agent, the Calculation Agent will provide the Holder with such
information about adjustments made pursuant to this Security as such agent
determines is appropriate.
9. Stock Splits.
If the Stock is subject to a stock split, then at the opening
of business on the first day on which the Stock trades without the right to
receive the stock split, the Calculation Agent will adjust the Exchange Rate to
equal the sum of the Exchange Rate in effect immediately prior to such
adjustment plus the product of (i) the number of new shares issued in the stock
split with respect to one share of the Stock and (ii) the Exchange Rate in
effect immediately prior to such adjustment. The Exchange Rate will not be
adjusted, however, unless such first day occurs after the Trade Date and on or
before the relevant Exchange Notice Date.
10. Reverse Stock Splits.
If the Stock is subject to a reverse stock split, then once
the reverse stock split becomes effective, the
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<PAGE> 22
Calculation Agent will adjust the Exchange Rate to equal the product of the
Exchange Rate in effect immediately prior to such adjustment and the quotient of
(i) the number of shares of outstanding Stock resulting from the reverse stock
split divided by (ii) the number of shares of Stock outstanding immediately
before the reverse stock split becomes effective. The Exchange Rate will not be
adjusted, however, unless the reverse stock split becomes effective after the
Trade Date and on or before the relevant Exchange Notice Date.
11. Stock Dividends.
If the Stock is subject to a stock dividend that is given
ratably to all holders of the Stock, then at the opening of business on the
Ex-Dividend Date, the Calculation Agent will adjust the Exchange Rate to equal
the Exchange Rate in effect immediately prior to such adjustment plus the
product of (i) the number of shares issued in the Stock dividend with respect to
one share of the Stock and (ii) the Exchange Rate in effect immediately prior to
such adjustment. The Exchange Rate will not be adjusted, however, unless such
Ex-Dividend Date occurs after the Trade Date and on or before the relevant
Exchange Notice Date.
12. Other Dividends and Distributions.
There will be no adjustments to the Exchange Rate to reflect
dividends or other distributions paid with respect to the Stock other than (i)
stock dividends as provided in section 11, (ii) dividends or other distributions
constituting Spin-Off Events as provided in section 14, (iii) issuances of
transferable rights or warrants as provided in section 13 and (iv) Extraordinary
Dividends as provided in this section 12. A dividend or other distribution with
respect to the Stock will be deemed to be an "Extraordinary Dividend" if the per
share value of such dividend or other distribution exceeds the per share value
of the immediately preceding dividend or distribution with respect to the Stock,
if any, that is not an Extraordinary Dividend by an amount equal to at least 10%
of the Closing Price of the Stock on the Business Day immediately preceding the
Ex-Dividend Date for such Extraordinary Dividend. If an Extraordinary Dividend
occurs with respect to the Stock, the Calculation Agent will adjust the Exchange
Rate to equal the product of (a) the Exchange
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<PAGE> 23
Rate in effect immediately prior to such adjustment and (b) a fraction, the
numerator of which is the Closing Price of the Stock on the Business Day
immediately preceding the Ex-Dividend Date and the denominator of which is the
amount by which such Closing Price exceeds the Extraordinary Dividend Amount.
The "Extraordinary Dividend Amount" with respect to an Extraordinary Dividend
for the Stock will equal (1) in the case of cash dividends or other
distributions that constitute regular quarterly dividends, the amount per share
of such Extraordinary Dividend minus the amount per share of the immediately
preceding dividend or distribution with respect to the Stock, if any, that is
not an Extraordinary Dividend or (2) in the case of cash dividends or other
distributions that do not constitute regular quarterly dividends, the amount per
share of such Extraordinary Dividend. To the extent an Extraordinary Dividend is
not paid in cash, the value of the non-cash component will be determined by the
Calculation Agent. A distribution on the Stock that constitutes a stock
dividend, an issuance of transferable rights or warrants or a Spin-Off Event and
also constitutes an Extraordinary Dividend will result only in an adjustment to
the Exchange Rate pursuant to section 11, 13 or 14, as applicable. The Exchange
Rate will not be adjusted pursuant to this section 12 unless the Ex-Dividend
Date for the Extraordinary Dividend occurs after the Trade Date and on or before
the relevant Exchange Notice Date.
13. Transferable Rights and Warrants.
If the Stock Issuer issues transferable rights or warrants to
all holders of the Stock to subscribe for or purchase the Stock at an exercise
price per share less than the Closing Price of the Stock on the Business Day
immediately before the Ex-Dividend Date for such issuance, then the Calculation
Agent will adjust the Exchange Rate by multiplying the Exchange Rate in effect
immediately prior to such adjustment by a fraction, the numerator of which is
the number of shares of Stock outstanding at the close of business on the day
before such Ex-Dividend Date plus the number of additional shares of Stock
offered for subscription or purchase under such transferable rights or warrants,
and the denominator of which is the number of shares of Stock outstanding at the
close of business on the day before such Ex-Dividend Date plus the number of
additional shares of Stock that the aggregate offering price of the total number
of shares of Stock so offered for
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<PAGE> 24
subscription or purchase would purchase at the Closing Price of the Stock on the
Business Day immediately before such Ex-Dividend Date, with such number of
additional shares being determined by multiplying the total number of shares so
offered by the exercise price of such transferable rights or warrants and
dividing the resulting product by the Closing Price of the Stock on the Business
Day immediately before such Ex-Dividend Date. The Exchange Rate will not be
adjusted, however, unless such Ex-Dividend Date occurs after the Trade Date and
on or before the relevant Exchange Notice Date.
14. Reorganization Events.
If (i) any reclassification or other change of the Stock
occurs, (ii) the Stock Issuer has been subject to a merger, combination or
consolidation and is not the surviving entity or it does survive but all the
shares of Stock are exchanged for or converted into Distribution Property, (iii)
any statutory share exchange involving the outstanding Stock and the securities
of another entity occurs (other than in a transaction described in clause (ii)
above), (iv) the Stock Issuer sells or otherwise transfers its property and
assets as an entirety or substantially as an entirety to another entity, (v) the
Stock Issuer issues to all holders of Stock equity securities of an issuer other
than the Stock Issuer (other than in a transaction described in clause (i),
(ii), (iii) or (iv) above) (a "Spin-Off Event"), (vi) an entity other than the
Stock Issuer completes a tender or exchange offer for all the outstanding Stock
or (vii) the Stock Issuer is liquidated, dissolved or wound up or is subject to
a proceeding under any applicable bankruptcy, insolvency or other similar law
(any such event in clauses (i) through (vii), a "Reorganization Event"), then
the Calculation Agent will adjust the Exchange Rate by adjusting the Reference
Amount so that the Reference Amount consists of the respective amounts of each
type of Distribution Property deemed, for the purposes of this Security, to be
distributed in such Reorganization Event in respect of the Reference Amount as
in effect immediately prior to such adjustment, taken together.
If the Calculation Agent determines that the Distribution
Property so distributed consists of more than one type of property, the
Calculation Agent will determine the respective amounts of such types that will
comprise the
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<PAGE> 25
adjusted Reference Amount so that the value of each such amount bears the same
relationship to the total value of all such amounts as the value of the
corresponding component type of Distribution Property so distributed bears to
the total value of all Distribution Property so distributed. The Calculation
Agent will determine the value of each component type of Distribution Property,
using the Closing Price for any such type consisting of securities and such
other method as it considers reasonable for any other type. If a holder of the
Stock may elect to receive different types or combinations of types of
Distribution Property in the Reorganization Event, the Distribution Property
will be deemed to include the types and amounts thereof distributed to a holder
that makes no election. If a Reorganization Event occurs and as a result the
Reference Amount is adjusted to consist of Distribution Property, the
Calculation Agent will make further adjustments for subsequent events that
affect such Distribution Property or any component type thereof, to the same
extent that it would make adjustments if the Stock were outstanding and were
affected by the same kinds of events. Consequently, if the Holder exercises the
Exchange Right or an Automatic Exchange occurs, the Holder will be entitled to
receive, for each $1,000 of the Outstanding Face Amount of this Security being
exchanged, all components of the Reference Amount as in effect on the relevant
Exchange Notice Date, with each component having been adjusted on a sequential
and cumulative basis for all events requiring adjustment on or before the
relevant Exchange Notice Date, unless the Company elects to pay cash in the
exchange.
If the Exchange Right is exercised or an Automatic Exchange
occurs and the Company elects to pay cash in the exchange, the Company will do
so based on the applicable price of the Stock pursuant to section 5, 7(a) or
7(b) as long as the Reference Amount consists only of Stock. If a Reorganization
Event occurs and the Reference Amount consists of property other than Stock,
then the amount of cash the Company will pay -- for each $1,000 of the
Outstanding Face Amount of this Security being exchanged -- will equal the total
value of the adjusted Reference Amount, as in effect on the relevant Exchange
Notice Date. The Calculation Agent will determine the value of each component of
the adjusted Reference Amount as provided in the prior paragraph.
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<PAGE> 26
If at any time another Person becomes the successor to the
Stock Issuer, as determined by the Calculation Agent, such successor Person
shall thereupon be deemed to be the Stock Issuer for all purposes of this
Security. If at any time the Reference Amount consists of Distribution Property,
as determined by the Calculation Agent, then all references in this Security to
the "Stock" shall thereupon be deemed to mean such Distribution Property and all
references in this Security to a "share of Stock" shall thereupon be deemed to
mean a comparable unit of each type of property comprising such Distribution
Property, as determined by the Calculation Agent.
Notwithstanding the foregoing, however, the Calculation Agent
will not make any adjustment for a Reorganization Event unless the event becomes
effective -- or, if the event is a Spin-Off Event, unless the Ex-Dividend Date
for the Spin-Off Event occurs -- after the Trade Date and on or before the
relevant Exchange Notice Date.
15. Minimum Adjustments.
Notwithstanding the foregoing, no adjustment will be required
in respect of any event specified in sections 9 through 14 unless such
adjustment would result in a change of at least 0.1% in the Exchange Rate. The
Exchange Rate resulting from any adjustment shall be rounded up or down, as
appropriate, to the nearest ten-thousandth, with five hundred-thousandths being
rounded upward -- e.g., 0.12344 will be rounded down to 0.1234 and 0.12345 will
be rounded up to 0.1235.
16. Role of Calculation Agent.
The Calculation Agent will be solely responsible for all
determinations and calculations regarding the Default Amount; whether a Market
Disruption Event has occurred and whether, and if so the day to which, the
Determination Date, Stated Maturity Date or any Exchange Notice Date, Exchange
Date or Call Date is to be postponed; adjustment of the Exchange Rate and
Reference Amount, including whether any event has occurred for which adjustment
is required and as to the amounts, types and values of property comprising any
Distribution Property and the Reference Amount; whether an Automatic Exchange is
to occur on the Stated Maturity Date or any Call Date and as to
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<PAGE> 27
the Section 7(a) Amount or Section 7(b) Amount, including the relevant Pricing
Period and Average Closing Price and any alternative price to be used in making
this determination; the Closing Price or other value of the Stock or any other
property; as to the Exchange Rate and the amounts and types of property
deliverable or payable in exchange for this Security on the Stated Maturity Date
or any Exchange Date or Call Date; and all such other matters as may be
specified elsewhere herein as matters to be determined by the Calculation Agent.
The Calculation Agent shall make all such determinations and calculations in its
sole discretion, and absent manifest error all determinations and calculations
made by the Calculation Agent shall be final and binding on the Company, the
Holder and all other Persons having an interest in this Security, without
liability on the part of the Calculation Agent.
The Company shall take such action as shall be necessary to
ensure that there is at all relevant times a financial institution serving as
the Calculation Agent hereunder. The Company may, in its sole discretion at any
time and from time to time, upon written notice to the Trustee, but without
notice to the Holder of this Security, terminate the appointment of any Person
serving as the Calculation Agent and appoint another Person (including any
Affiliate of the Company) to serve as such agent. Insofar as this Security
provides for the Calculation Agent to obtain prices or other information from
any institution or other source, the Calculation Agent may do so from any source
or sources of the kind contemplated hereby notwithstanding that any one or more
of such sources are such agent, Affiliates of such agent or Affiliates of the
Company.
17. Payment and Delivery.
Payment of any amount payable on this Security in cash will be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payment or
delivery of any Stock, cash or other property payable or deliverable on this
Security will be made to an account designated by the Holder (in writing to the
Company and the Trustee on or before the Determination Date) and acceptable to
the Company or, if no such account is designated and acceptable as aforesaid, at
the office or agency of the Company maintained for that purpose in The City of
New York,
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<PAGE> 28
provided, however, that, at the option of the Company, 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; and provided, further, that
payment or delivery at Maturity shall be made only upon surrender of this
Security at such office or agency (unless the Company waives surrender).
Notwithstanding the foregoing, if this Security is a Global Security, any
payment or delivery may be made pursuant to the Applicable Procedures of the
Depositary as permitted in said Indenture.
18. Holidays.
Notwithstanding any provision of this Security or of the
Indenture, if any delivery or payment of principal or interest would otherwise
be due on this Security on a day (the "Specified Day") that is not a Business
Day, such delivery or payment may be made (or such principal or interest may be
made available for delivery or payment) on the next succeeding Business Day with
the same force and effect as if such delivery or payment were made on the
Specified Day. The provisions of this section shall apply to this Security in
lieu of the provisions of Section 113 of the Indenture.
19. Reverse of this Security.
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.
20. Certificate of Authentication.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof 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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<PAGE> 29
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
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____________________________
Authorized Officer
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<PAGE> 30
(Reverse of Security)
Reverse
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, the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. Insofar as
the provisions of the Indenture may conflict with the provisions set forth on
the face of this Security, the latter shall control for purposes of this
Security.
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 designated on
the face hereof.
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 and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding
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<PAGE> 31
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.
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 reasonable 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
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
interest on this Security as herein provided.
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 interest on this Security are payable, duly endorsed by, or accompanied
by a written instrument of
(Reverse of Security continued on next page)
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<PAGE> 32
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing.
Thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate Face Amount, will be issued
to the designated transferee or transferees.
This Security, and any other Securities of this series and of
like tenor, are issuable only in registered form without coupons in Authorized
Denominations. 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, the Trustee nor any such agent shall be affected by notice to the
contrary.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 1
Exhibit 8.2
July 1, 1999
The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
As counsel to The Goldman Sachs Group, Inc. (the "Company") in
connection with the issuance of $72,411,000 aggregate principal amount of 2.00%
Exchangeable Notes due 2006 (Exchangeable for Common Stock of Wells Fargo &
Company), we hereby confirm to you that the discussion set forth under the
heading "Supplemental Discussion of Federal Income Tax Consequences" in the
Prospectus Supplement which forms a part of the Registration Statement of the
Company to which this opinion is filed as an exhibit is our opinion, subject to
the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the heading
"Supplemental Discussion of Federal Income Tax Consequences" in the Prospectus
Supplement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933.
Very truly yours,
/s/ SULLIVAN & CROMWELL
