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Exhibit 2
(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. 38141GAT1
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
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0.75% Exchangeable Note due 2005
(Exchangeable for Common Stock of American Express Company)
------------------
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: $14,045,000
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: 13.7048 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 American Express Company, 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 $1,000 or a multiple of $1,000.
"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 New York Stock Exchange (or, if different, the principal
securities market in which the Stock is then quoted or traded) is not open for
trading 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 November 1, 2002. 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.
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"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).
"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 any
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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so given, during the Default Quotation Period; provided, however, 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
November 1, 2005; provided, however, that if a Market Disruption Event occurs or
is continuing on that 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 November 1, 2005 or, if November 1, 2005 is not
a Business Day, later than the first Business Day after November 1, 2005.
"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.
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"Exercise Requirements" means, with respect to any exchange of
this Security pursuant to section 5, all the following requirements that apply
to such exchange:
(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.
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The Calculation Agent will, in its sole discretion, resolve any questions that
may arise as to the validity of a Notice 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 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
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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.
"Notice of Exchange" means a properly completed and signed
notice substantially in the form attached to the Company's prospectus supplement
dated October 25, 2000 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.
"Original Issue Date" means November 1, 2000.
"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 Group (or any successor) or
P-1 or higher by Moody's Investors Service, Inc. (or any successor) or, in
either
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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 November 1, 2005 or, if such day
is not a Business Day, the next succeeding Business Day; provided, however, that
if the fifth Business Day preceding November 1, 2005 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 November 1, 2005 or, if November
1, 2005 is not a Business Day, later than the sixth Business Day after November
1, 2005.
"Trade Date" means October 25, 2000.
-----------------------
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, 100% of 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 May 1 and November
1 (each an "Interest Payment Date") in each year, commencing on May 1, 2001, and
at the Maturity of the principal at the
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rate of 0.75% 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 effective Federal Funds rate (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
November 1, 2005, then the Interest Payment Date that would otherwise occur on
November 1, 2005 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 made available
for payment, 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 made available
for payment, 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.
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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 Closing Price of the relevant security on the relevant Pricing
Date, 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 100% of 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 and payable on any Exchange Date
shall be the cash, Stock or
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other property that the Company is obligated to deliver (or cause to be
delivered) 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 made available), 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
payment or delivery 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 Outstanding 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 made available).
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 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 multiplied
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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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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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(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 15
calendar days' nor more than 45 calendar days' prior notice, at any time after
November 1, 2002, in whole but not in part, at the election of the Company for
cash at a Redemption Price equal to 100% of the Outstanding Face Amount on the
Call Date, plus 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.
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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 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
Closing Price of the Stock on 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 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 will notify the Holder 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
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<PAGE> 17
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 amount of each type of property to be paid
or delivered 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 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 Closing Price of
the Stock on 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".
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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 will specify its selection
in the Call Notice. 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 amount of each type of property to be paid or
delivered 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 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
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Agent shall follow the applicable provisions of clauses (i) and (ii) below. If
the Calculation Agent is required pursuant to this section 7 to determine the
Closing Price of the Stock on a particular day in order to determine the Section
7(a) Amount or the Section 7(b) Amount, then, for the purposes of this section
7(c), such day is called a "Pricing Date".
(i) If a Market Disruption Event occurs or is continuing on a
day that would otherwise be a Pricing Date, then the Calculation Agent
will use, instead of the Closing Price on such day, the Closing Price
on the first Business Day after such day 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 Call Notice Date, 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 Possible Pricing Date".
(The Pricing Date may occur on a Deferred Pricing Date and a Deferred
Pricing Date may occur on the Latest Possible Pricing Date.)
(ii) If a Market Disruption Event occurs or is continuing on a
day that would otherwise be a Pricing Date 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 and will use the Closing
Price, as so determined, in determining the Section 7(a) Amount or the
Section 7(b) Amount, as the case may be.
If a Call Notice is given and the Calculation Agent uses the Closing Price
(however determined as aforesaid) on a
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Deferred Pricing Date as provided in clause (i) or (ii) 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 Pricing Date
will be the "Section 7(b) Calculation Day".
(d) Cash Settlement. If a Market Disruption Event occurs or is
continuing:
(i) on a Determination Date or on any later day through and
including the Stated Maturity Date, the Company may choose to pay an
amount in cash instead of delivering Stock on the Stated Maturity Date,
or
(ii) on a Call Notice Date or on any later day through and
including the Call Date, the Company may choose to pay an amount in
cash instead of delivering Stock on the Call Date,
in each case even if the Company has notified the Holder of the Company's
election to deliver Stock in accordance with the terms of this Security.
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, 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 Business
Day for which the Closing Price or other market
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<PAGE> 21
value of the Stock is used to determine the amount of cash payable in such
exchange.
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 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.
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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 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
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<PAGE> 23
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 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.
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<PAGE> 24
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 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
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<PAGE> 25
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.
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.
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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 the Section 7(a)
Amount or Section 7(b) Amount, including the relevant Pricing Date and the
Closing Price on the Pricing Date 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
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<PAGE> 27
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 or otherwise permitted 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; provided, however, that, at the option of the Company, payment of any
interest may be made by check mailed to the address of the Holder 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. In lieu of making any delivery of
property it is obligated hereunder to make, the Company shall be entitled to
cause such delivery
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<PAGE> 28
to be made on its behalf, provided such delivery is otherwise made as provided
herein.
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: November 1, 2000
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
Dated: November 1, 2000
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 Signatory
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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
$25,000,000,000 (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
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<PAGE> 31
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.
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 and, with respect to this Security, on the face
hereof.
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
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
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and unconditional, to pay the principal of and any 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 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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