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Exhibit 4.1
[Specimen]
Registered No. __ CUSIP No. 38141G AQ 7
ISIN No. US38141GAQ73
(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 DEPOSITARY 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.
THE GOLDMAN SACHS GROUP, INC.
7.625% Notes due 2005
The Goldman Sachs Group, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ________________ dollars ($_____________) on August 17, 2005
and to pay interest thereon, from July 17, 2000 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on February 17 and August 17 in each year, commencing on February 17, 2001 and
at the Maturity of the principal hereof, at the rate of
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7.625% per annum, until the principal hereof is paid or made available for
payment. Any such installment of interest that is overdue shall also bear
interest at the rate of 7.625% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the date any such overdue amount
first becomes due until it is paid or made available for payment.
Notwithstanding the foregoing, interest on any principal, premium or installment
of interest that is overdue shall be payable on demand.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the August 1 or February 1 (whether or not a Business
Day, as defined below) 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 being 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.
CURRENCY AND MANNER OF PAYMENT
Payment of the principal of and interest on this Security 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.
Notwithstanding any other provision of this Security or the Indenture, if this
Security is a Global Security, any payment in respect of this Security may be
made pursuant to the Applicable Procedures of the Depositary as permitted in the
Indenture.
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Subject to the prior paragraph and except as provided in the
next paragraph, payment of any amount payable on this Security will be made at
the office or agency of the Company maintained for that purpose in The City of
New York (and at any other office or agency maintained by the Company for that
purpose), against surrender of this Security in the case of any payment due at
the Maturity of the principal hereof (other than any payment of interest that
first becomes due on an Interest Payment Date); provided, however, that, at the
option of the Company and subject to the next paragraph, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Subject to the second preceding paragraph, payment of any
amount payable on this Security 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: Corporate 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, sch written request must be made by the Person who is the
registered Holder of this Security on the relevant Regular
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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.
PAYMENTS DUE ON A BUSINESS DAY
Notwithstanding any provision of this Security or the
Indenture, if any amount of principal or interest would otherwise be due on this
Security on a day (the "Specified Day") that is not a Business Day, such amount
may be paid or made available for payment on the next succeeding Business Day
with the same force and effect as if such amount were paid on the Specified Day.
For all purposes of this Security, "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
generally are authorized or obligated by law or executive order to close in The
City of New York. The provisions of this paragraph shall apply to this Security
in lieu of the provisions of Section 113 of the Indenture.
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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.
THE GOLDMAN SACHS GROUP, INC.
By /s/ Dan H. Jester
----------------------------
Name: Dan H. Jester
Title: Vice President and
Treasurer
This is one of the Securities of the series designated herein
and referred to in the Indenture.
Dated: July 17, 2000
THE BANK OF NEW YORK, as Trustee
By /s/ Carlos Capellan
-----------------------------
Authorized Signatory
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(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. The aggregate principal amount of such series is $1,250,000,000,
provided that the Company may increase such aggregate principal amount at any
time. Any election by the Company so to increase such aggregate principal amount
shall be evidenced by a certificate of an Authorized Person (as defined in the
Determination of an Authorized Person, dated July 17, 2000, with respect to 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 denominations of $1,000 and multiples
thereof.
3. ADDITIONAL AMOUNTS
If the beneficial owner of this Security is a United States
Alien (as defined below), the Company will pay all additional amounts that may
be necessary so that every net payment of the principal of and interest on this
Security to such beneficial owner, after deduction or withholding for or on
account of any present or future tax, assessment or governmental charge imposed
with respect to
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such payment by any U.S. Taxing Authority (as defined below), will not be less
than the amount provided for in this Security to be then due and payable;
provided, however, that the Company shall have no obligation to pay additional
amounts for or on account of any one or more of the following:
(i) any tax, assessment or other governmental charge imposed
solely because at any time there is or was a connection between such
beneficial owner (or between a fiduciary, settlor, beneficiary or
member of such beneficial owner, if such beneficial owner is an estate,
trust or partnership) and the United States (as defined below) (other
than the mere receipt of a payment on, or the ownership or holding of,
a Security), including because such beneficial owner (or such
fiduciary, settlor, beneficiary or member) at any time, for U.S.
federal income tax purposes: (a) is or was a citizen or resident, or is
or was treated as a resident, of the United States, (b) is or was
present in the United States, (c) is or was engaged in a trade or
business in the United States, (d) has or had a permanent establishment
in the United States, (e) is or was a domestic or foreign personal
holding company, a passive foreign investment company or a controlled
foreign corporation, (f) is or was a corporation that accumulates
earnings to avoid U.S. federal income tax or (g) is or was a
"10-percent shareholder" of the Company as defined in section 871(h)(3)
of the U.S. Internal Revenue Code or any successor provision;
(ii) any tax, assessment or governmental charge imposed solely
because of a change in applicable law or regulation, or in any official
interpretation or application of applicable law or regulation, that
becomes effective after the day on which the payment becomes due or is
duly provided for, whichever occurs later;
(iii) any estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or any similar tax, assessment or other
governmental charge;
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(iv) any tax, assessment or other governmental charge imposed
solely because such beneficial owner or any other Person fails to
comply with any certification, identification or other reporting
requirement concerning the nationality, residence, identity or
connection with the United States of the Holder or any beneficial owner
of this Security, if compliance is required by statute, by regulation
of the U.S. Treasury Department or by an applicable income tax treaty
to which any U.S. Taxing Authority is a party, as a precondition to
exemption from such tax, assessment or other governmental charge;
(v) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of
principal of or interest on this Security;
(vi) any tax, assessment or other governmental charge imposed
solely because the payment is to be made by a particular Paying Agent
(which term may include the Company) and would not be imposed if made
by another Paying Agent (which term may include the Company); or
(vii) any combination of the taxes, assessments or other
governmental charges described in items (i) through (vi) of this
Section 3.
Additional amounts also will not be paid with respect to any
payment of principal of or interest on this Security to any United States Alien
who is a fiduciary or a partnership, or who is not the sole beneficial owner of
any such payment, to the extent that the Company would not be required to pay
Additional Amounts to any beneficiary or settlor of such fiduciary or any member
of such a partnership, or to any beneficial owner of the payment, if that Person
had been treated as the beneficial owner of this Security for this purpose.
The term "United States Alien" means any person who, for U.S.
federal income tax purposes, is a nonresident alien individual, a foreign
corporation, a foreign partnership or an estate or trust that is not subject to
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U.S. federal income tax on a net income basis on income or gain from this
Security. For the purposes of this Section 3 and Section 4 only, (a) the term
"United States" means the United States of America (including the states thereof
and the District of Columbia), together with the territories, possessions and
all other areas subject to the jurisdiction of the United States of America and
(b) the term "U.S. Taxing Authority" means the United States of America or any
state, any other jurisdiction or any taxing authority in the United States.
Except as specifically provided in this Security, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein.
Whenever in the Securities of this series (or in the
Indenture, including in Sections 501(1) and (2) thereof, insofar as applicable
to this series) there is a reference, in any context, to the payment of the
principal of or interest on any Security of this series, such mention shall be
deemed to include mention of any payment of additional amounts to United States
Aliens in respect to such payment of principal or interest to the extent that,
in such context, such additional amounts are, were or would be payable in
respect thereof pursuant to this Section 3 or any corresponding section of
another Security of this series, as the case may be. Express mention of the
payment of additional amounts in any provision of any Security of this series
shall not be construed as excluding additional amounts in the provisions of any
Security of this series (or of the Indenture insofar as it applies to this
series) where such express mention is not made.
4. REDEMPTION AT THE COMPANY'S OPTION
The Securities of this series may be redeemed, as a whole but
not in part, at the option of the Company, at a redemption price equal to 100%
of the principal amount of the Securities to be redeemed, together with interest
accrued to the date fixed for redemption, if, as a result of any amendment to,
or change in, the laws or regulations of any U.S. Taxing Authority (as defined
in Section 3 above),
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or any amendment to or change in any official interpretation or application of
such laws or regulations, which amendment or change becomes effective or is
announced after July 13, 2000, the Company will become obligated to pay, on the
next Interest Payment Date, additional amounts in respect of any Security of
this series pursuant to Section 3 of this Security or any corresponding section
of another Security of this series. If the Company becomes entitled to redeem
the Securities of this series, it may do so on any day thereafter pursuant to
the Indenture; provided, however, that (1) the Company gives the Holder of this
Security notice of such redemption not more than 60 days nor less than 30 days
prior to the date fixed for redemption as provided in the Indenture, (2) no such
notice of redemption may be given earlier than 90 days prior to the next
Interest Payment Date on which the Company would be obligated to pay such
additional amounts and (3) at the time such notice is given, such obligation to
pay such additional amounts remains in effect. Immediately prior to the giving
of any notice of redemption of Securities pursuant to this Section 4, the
Company will deliver to the Trustee an Officers' Certificate stating that the
Company is entitled to effect such redemption and setting forth in reasonable
detail a statement of facts showing that the conditions precedent to the right
of the Company to so redeem the Securities have occurred. Interest installments
due on or prior to a Redemption Date will be payable to the Holder of this
Security or one or more Predecessor Securities, of record at the close of
business on the relevant record date, all as provided in the Indenture.
5. 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.
6. 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
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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.
7. 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
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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
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
8. 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 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
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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 is a Global Security and is 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.
9. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. TERMS DEFINED IN THE INDENTURE.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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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
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__________________________ _________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must cor-
respond with the name of
the Holder as written
upon the face of the
attached Security in
every particular, without
alteration or any change
whatever.
