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(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. 38141GAV6
THE GOLDMAN SACHS GROUP, INC.
MEDIUM-TERM NOTES, SERIES B
1% Exchangeable Basket-Linked Note due 2007
(Linked to a Basket of Three Stocks)
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: $66,500,000
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, in whole or in
part at any time, for the Exchange Value on the Exchange Notice Date times
the Face Amount exchanged and divided by $1,000 as provided in section 4
and elsewhere on the face of this Security.
EXCHANGE VALUE: a cash amount equal to the product of (i) the Exchange Rate
times (ii) the Closing Basket Level on the Exchange Notice Date as
specified in section 4 on the face of this Security.
EXCHANGE RATE: 8.6655.
CALL RIGHT: the Company may redeem this Security as provided in section 5 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 6 on the
face of this Security.
BASKET: the common stocks of AMR Corporation, Countrywide Credit Industries Inc.
and Waste Management, Inc., with each stock having a relative weighting on
the trade date of 33.3333%.
CALCULATION AGENT: Goldman, Sachs & Co.
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DEFEASANCE: neither full defeasance nor covenant defeasance applies to this
Security.
OTHER TERMS:
All terms used in this Security that are not defined in this Security but
are defined in the Indenture referred to on the reverse of this Security shall
have the meanings assigned to them in the Indenture. References in this Security
to numbered sections are to numbered sections on the face of this Security,
unless the context requires otherwise. Section headings on the face of this
Security are for convenience only and shall not affect the construction of this
Security.
"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, as provided in section 6.
"Basket Stock" means the common stock of AMR Corporation, Countrywide
Credit Industries Inc. or Waste Management, Inc. "Basket Stocks" means all of
such common stocks.
"Basket Stock Issuer" means AMR Corporation, Countrywide Credit Industries,
Inc. or Waste Management, Inc.
"Business Day" means any day that is not a Saturday or a Sunday and is also
a day on which the principal securities market for the Basket Stocks is open for
trading.
"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 6(c), in which case the Call
Date shall be such later date; provided, however, that a Call Date shall in all
cases be after December 12, 2007. As applied to this Security, the term
"Redemption
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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 5.
"Call Notice Date" means any Business Day on which the Company gives a Call
Notice.
"Closing Basket Level" means on any Business Day the sum of the products of
each Basket Stock's Closing Price on that day multiplied by that Basket Stock's
Reference Amount on that day.
"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 on 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 the Calculation Agent or of the Company) as will make
such bid prices available to the Calculation Agent. 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
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this Security as the Company's obligations hereunder). Such cost will equal (i)
the lowest amount that a Qualified Financial Institution (selected as provided
below) would charge to effect such assumption (or undertaking) plus (ii) the
reasonable expenses (including reasonable attorneys' fees) incurred by the
Holder of this Security in preparing any documentation necessary for such
assumption (or undertaking). During the Default Quotation Period, each of the
Holder of this Security and the Company may request a Qualified Financial
Institution to provide a quotation of the amount it would charge to effect such
assumption (or undertaking) and notify the other in writing of such quotation.
The amount referred to in clause (i) of this paragraph will equal the lowest
(or, if there is only one, the only) quotation so obtained, and as to which
notice is so given, during the Default Quotation Period; provided, 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 December 12,
2007; provided, however, that if a Market Disruption Event occurs or is
continuing on that fifth prior Business Day, the Determination Date will be the
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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 December 12, 2007 or, if December 12, 2007 is
not a Business Day, later than the first Business Day after December 12, 2007.
"Distribution Property" means securities, cash and/or other property
distributed in any Reorganization Event in respect of a Basket Stock and, in the
case of a Spin-Off Event, includes such Basket Stock.
"Exchange Date" means, with respect to any exchange of this Security
pursuant to section 4, 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 4, 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 4, 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 4, 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 with respect to a
Basket Stock shall mean the first day on which the Basket Stock trades without
the right to receive such dividend or other distribution.
"Exercise Requirements" means, with respect to any exchange of this
Security pursuant to section 4, 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
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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 4. In each case, such delivery must be made by
check, as provided in clause (ii) above, or by wire transfer to an account
specified by the Trustee (or in such other manner as the Trustee may
specify).
(iv) If this Security is a Global Security, the beneficial interest in
the portion of the Security to be exchanged must be transferred on the
books of the Depositary to the account of the Trustee at the Depositary and
the Trustee must receive and accept the transfer, all in accordance with
the applicable procedures of the Depositary. If the Trustee receives and
accepts the transfer by 3:00 P.M., New York City time, on any Business Day,
the requirement in this clause (iv) will be deemed satisfied as of 11:00
A.M. on the same Business Day.
The Calculation Agent will, in its sole discretion, resolve any questions that
may arise as to the validity of a Notice of Exchange or as to whether and when
the Exercise Requirements have been satisfied in respect of any exchange.
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"Market Disruption Event" means, with respect to the Basket, (i) a
suspension, absence or material limitation of trading in any of the Basket
Stocks on their primary market 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, if
available, related to any of the Basket Stocks 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) any of the Basket Stocks
do not trade on what was the primary market for those Basket Stocks, in each
case (i), (ii) and (iii) as determined by the Calculation Agent; provided,
however, that no such event described in clause (i), (ii) or (iii) will be a
Market Disruption Event unless the Calculation Agent also determines that such
event materially interferes with the ability of the Company or any of its
Affiliates to unwind all or a material portion of any hedge that any of them
effects with respect to this Security. For purposes of determining whether a
Market Disruption Event has occurred, (a) a limitation on the hours or numbers
of days of trading in the relevant market will not constitute a Market
Disruption Event if it results from an announced change in the regular business
hours of such market, (b) a decision to permanently discontinue trading in the
relevant option contracts will not constitute a Market Disruption Event, (c) a
suspension or limitation of trading in a Basket Stock or in option contracts
related to a Basket Stock, if available, in the primary market for such stock or
such contracts, by reason of (1) a price change exceeding limits set by such
market, (2) an imbalance of orders relating to such stock or such contracts or
(3) a disparity in bid and ask quotes relating to such stock or such contracts,
will, in each case (1), (2) and (3), constitute a suspension or material
limitation of trading in such stock or such option contracts related to the
Basket Stock and (d) an "absence of trading" in the primary market on which a
Basket Stock, or on which option contracts related to a Basket Stock, are traded
will not include any time when such market is itself closed for trading under
ordinary circumstances.
"Notice of Exchange" means a properly completed and signed notice
substantially in the form attached to the Company's prospectus supplement dated
December 5, 2000 relating to this Security (or such other form as is
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acceptable to the Trustee and the Calculation Agent). Once given, a Notice of
Exchange may not be revoked.
"Original Issue Date" means December 12, 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 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 5. The Redemption Price payable on any Call Date
does not include any accrued interest payable in respect of this Security.
"Reference Basket Level" means 100.
"Reference Amount" for each Basket Stock means, initially, the number of
shares of the Basket Stock included in the Basket so that the value of the
Basket Stock equaled 33.3333% of the total value of the Basket on the Trade
Date. The initial Reference Amount for each Basket Stock is as follows: AMR
Corporation -- 0.911429, Countrywide Credit Industries Inc. -- 0.872639 and
Waste Management, Inc. -- 1.287275. Each Reference Amount 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 7 through 14.
"Stated Maturity Date" means December 12, 2007 or, if such day is not a
Business Day, the next succeeding Business Day; provided, however, that if the
fifth Business Day preceding December 12, 2007 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 December 12, 2007 or, if
December 12, 2007 is not a Business Day, later than the sixth Business Day after
December 12, 2007.
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"Trade Date" means December 5, 2000.
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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 June 12 and December 12 (each an "Interest
Payment Date") in each year, commencing on June 12, 2001, and at the Maturity of
the principal at the rate of 1% 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 December 12, 2007, then the Interest Payment Date that would otherwise
occur on December 12, 2007 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 4 or subject to an Automatic Exchange pursuant to
section 6 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
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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.
3. 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 that the Company is obligated to pay 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 that the Company is obligated to pay
in such Automatic Exchange. The principal of this Security that becomes due and
payable on any Exchange Date shall be the cash 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 that the Company is obligated to pay as set forth above in this
section 3 has been paid as provided herein (or such payment has been made
available), the principal of this Security (or the portion hereof being
exchanged, as the case
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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 of the cash that the Company is obligated to pay 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).
4. 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 cash in an
amount equal to the Exchange Value on the Exchange Notice Date times the Face
Amount so exchanged and divided by $1,000, 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. The Company shall make (or
cause its agent to make) the payment due in any such exchange on the applicable
Exchange Date and in the manner provided in section 8 below. No election to
exchange this Security pursuant to this section 4 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 4 is herein called the "Exchange Right".
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
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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.
If the Closing Basket Level that must be used to determine the Exchange
Value is not available on the Exchange Notice Date, either because of a Market
Disruption Event or for any other reason, the Calculation Agent will
nevertheless determine that Closing Basket Level based on its assessment, made
in its sole discretion, of the market value of the Basket on such Exchange
Notice Date.
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 payment due in respect of any portion of this Security
on an Exchange Date pursuant to this section 4, interest shall accrue on such
portion from the Exchange Date to the day such payment is made or made available
and shall be payable on demand of the Holder.
5. Company's Call Right.
This Security is subject to redemption upon not less than 5 Business Days'
nor more than 15 Business Days' prior notice, at any time after December 12,
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 6(b). If an Automatic Exchange is to occur pursuant to
section 6(b), then, notwithstanding the foregoing, this Security shall not be
subject to redemption pursuant to this section 5. If an Automatic Exchange is
not to occur pursuant to section 6(b), then this Security shall be redeemed on
the Call Date as provided in this section 5 and in the Indenture (as modified by
this section 5).
6. 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 6(a)
will apply. On the Determination Date, the Calculation Agent (i) will determine
the Closing Basket Level on the Determination Date, (ii) will multiply such
Closing Basket Level by both the Exchange Rate and the Outstanding Face Amount
on such date and (iii) will divide the resulting product by $1,000, subject to
section 6(c) below. The resulting amount determined pursuant to the prior
sentence and section 6(c), as applicable, is herein called the "Section 6(a)
Amount".
If the Section 6(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, the Company
will pay to the Holder the Section 6(a) Amount. In determining the amounts
specified in this paragraph and the prior paragraph, the Outstanding Face Amount
on the Determination Date shall be deemed to exclude any portion thereof to be
exchanged pursuant to section 4 on an Exchange Date that occurs on or after the
Determination Date. In addition, if the Outstanding Face Amount on the Stated
Maturity Date (excluding any such portions to be otherwise exchanged) is lower
than the Face Amount deemed to be Outstanding on the Determination Date, then
the amount of cash to be paid
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on the Stated Maturity Date pursuant to this section 6(a) will be
proportionately reduced.
If the Section 6(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 6(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 6(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 6(b) will apply. On the Call Notice Date (or if the Call Notice
Date is not the Pricing Date, on the Section 6(b) Calculation Day as defined in
section 6(c)), the Calculation Agent (i) will determine the Closing Basket Level
on such date, (ii) will multiply such Closing Basket Level by both the Exchange
Rate and the Outstanding Face Amount on such date and (iii) will divide the
resulting product by $1,000, subject to section 6(c) below. The resulting amount
determined pursuant to the prior sentence and section 6(c), as applicable, is
herein called the "Section 6(b) Amount".
If the Section 6(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 6(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, the Company will pay to the Holder the Section 6(b) Amount. In
determining the amounts specified in this paragraph and the prior
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paragraph, the Outstanding Face Amount on the Section 6(b) Calculation Day will
be deemed to exclude any portion thereof to be exchanged pursuant to section 4
on an Exchange Date that occurs on or after the Section 6(b) Calculation Day. In
addition, if the Outstanding Face Amount on the Call Date (excluding any such
portion to be otherwise exchanged) is lower than the Face Amount deemed to be
Outstanding on the Section 6(b) Calculation Day, then the amount of cash to be
paid on the Call Date pursuant to this section 6(b) will be proportionately
reduced.
If the Section 6(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 6(b) and the Company will redeem the Outstanding Face
Amount on the Call Date as provided in section 5.
If any portion of this Security is subject to an Automatic Exchange
pursuant to this section 6(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 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 payment is made or made available and shall be payable on demand of the
Holder.
(c) Deferred Pricing. In determining the Section 6(a) Amount or the Section
6(b) Amount, the Calculation Agent shall follow the applicable provisions of
clauses (i) and (ii) below. If the Calculation Agent is required pursuant to
this section 6 to determine the closing level of the Basket on a particular day
in order to determine the Section 6(a) Amount or the Section 6(b) Amount, then,
for the purposes of this section 6(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 Basket Level on such day, the Closing Basket Level
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
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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 Basket Level (and the
Deferred Pricing Date will occur) on the Latest Possible Pricing Date. If
the Calculation Agent determines that the Closing Basket Level 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 Basket Level based on its assessment, made in its
sole discretion, of the value of the Basket Stocks on the Latest Possible
Pricing Date and will use this Closing Basket Level, as so determined, in
determining the Section 6(a) Amount or the Section 6(b) Amount, as the case
may be.
If a Call Notice is given and the Calculation Agent uses the Closing Basket
Level (however determined as aforesaid) on a 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 6(b) Calculation Day".
7. Antidilution Adjustment.
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The Calculation Agent shall adjust a Reference Amount of a Basket Stock as
provided in this Security in respect of each event for which adjustment is
required under sections 8 through 13 (and not in respect of any other event).
(If more than one such event occurs, the Calculation Agent shall adjust the
Reference Amount as so provided for each such event, sequentially, in the order
in which such events occur, and on a cumulative basis.) The Reference Amount for
each Basket Stock will be subject, independently and separately, to the
adjustments described in Sections 8 through 13 with respect to the dilution
events that affect that Basket Stock. 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 Basket Level or other market value of the Basket 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 8 through 13 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.
8. Stock Splits.
If a Basket Stock is subject to a stock split, then at the opening of
business on the first day on which the Basket Stock trades without the right to
receive the stock split, the Calculation Agent will adjust the applicable
Reference Amount to equal the sum of the Reference Amount in effect immediately
prior to such adjustment plus the product of (i) the number of new shares issued
in the stock split with respect to one share of the Basket Stock and (ii) the
Reference Amount in effect immediately prior to such adjustment. The Reference
Amount will not be adjusted, however, unless such first day occurs
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after the Trade Date and on or before the relevant Exchange Notice Date.
9. Reverse Stock Splits.
If a Basket Stock is subject to a reverse stock split, then once the
reverse stock split becomes effective, the Calculation Agent will adjust the
applicable Reference Amount to equal the product of the Reference Amount in
effect immediately prior to such adjustment and the quotient of (i) the number
of shares of outstanding Basket Stock resulting from the reverse stock split
divided by (ii) the number of shares of the Basket Stock outstanding immediately
before the reverse stock split becomes effective. The Reference Amount 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.
10. Stock Dividends.
If a Basket Stock is subject to a stock dividend that is given ratably to
all holders of the Basket Stock, then at the opening of business on the
Ex-Dividend Date, the Calculation Agent will adjust the applicable Reference
Amount to equal the Reference Amount in effect immediately prior to such
adjustment plus the product of (i) the number of shares issued in the Basket
Stock dividend with respect to one share of the Basket Stock and (ii) the
Reference Amount in effect immediately prior to such adjustment. The Reference
Amount will not be adjusted, however, unless such Ex-Dividend Date occurs after
the Trade Date and on or before the relevant Exchange Notice Date.
11. Other Dividends and Distributions.
There will be no adjustments to a Reference Amount to reflect dividends or
other distributions paid with respect to a Basket Stock other than (i) stock
dividends as provided in section 10, (ii) dividends or other distributions
constituting Spin-Off Events as provided in section 13, (iii) issuances of
transferable rights or warrants as provided in section 12 and (iv) Extraordinary
Dividends as provided in this section 11. A dividend or other distribution with
respect to any Basket Stock will be deemed to be an "Extraordinary Dividend" if
the per share value of such dividend or other distribution exceeds the per
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share value of the immediately preceding dividend or distribution with respect
to the Basket Stock, if any, that is not an Extraordinary Dividend by an amount
equal to at least 10% of the Closing Price of the Basket Stock on the Business
Day immediately preceding the Ex-Dividend Date for such Extraordinary Dividend.
If an Extraordinary Dividend occurs with respect to a Basket Stock, the
Calculation Agent will adjust the applicable Reference Amount to equal the
product of (a) the Reference Amount in effect immediately prior to such
adjustment and (b) a fraction, the numerator of which is the Closing Price of
the Basket 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 a Basket Stock will equal (1) in the
case of cash dividends or other distributions that constitute regular quarterly
dividends, the amount per share of such Extraordinary Dividend minus the amount
per share of the immediately preceding dividend or distribution with respect to
the Basket 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 a
Basket 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 a Reference Amount pursuant to
section 10, 12 or 13, as applicable. A Reference Amount will not be adjusted
pursuant to this section 11 unless the Ex-Dividend Date for the Extraordinary
Dividend occurs after the Trade Date and on or before the relevant Exchange
Notice Date.
12. Transferable Rights and Warrants.
If a Basket Stock Issuer issues transferable rights or warrants to all
holders of the Basket Stock to subscribe for or purchase the Basket Stock at an
exercise price per share less than the Closing Price of the Basket Stock on the
Business Day immediately before the Ex-Dividend Date for such issuance, then the
Calculation Agent will adjust the applicable Reference Amount by multiplying the
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Reference Amount in effect immediately prior to such adjustment by a fraction,
the numerator of which is the number of shares of the Basket Stock outstanding
at the close of business on the day before such Ex-Dividend Date plus the number
of additional shares of the Basket Stock offered for subscription or purchase
under such transferable rights or warrants, and the denominator of which is the
number of shares of the Basket Stock outstanding at the close of business on the
day before such Ex-Dividend Date plus the number of additional shares of the
Basket 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 Basket 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 Basket Stock on the Business Day immediately before such
Ex-Dividend Date. A Reference Amount will not be adjusted, however, unless such
Ex-Dividend Date occurs after the Trade Date and on or before the relevant
Exchange Notice Date.
13. Reorganization Events.
If (i) any reclassification or other change of a Basket Stock occurs, (ii)
a Basket 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 the
Basket Stock are exchanged for or converted into Distribution Property, (iii)
any statutory share exchange involving the outstanding Basket Stock and the
securities of another entity occurs (other than in a transaction described in
clause (ii) above), (iv) a Basket Stock Issuer sells or otherwise transfers its
property and assets as an entirety or substantially as an entirety to another
entity, (v) a Basket Stock Issuer issues to all holders of the Basket Stock
equity securities of an issuer other than the Basket 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 a Basket Stock Issuer completes a tender or
exchange offer for all the outstanding Basket Stock of a Basket Stock Issuer or
(vii) a Basket 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
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<PAGE> 23
(vii), a "Reorganization Event"), then the Calculation Agent will adjust the
applicable Reference Amount so that it 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 a
Basket Stock may elect to receive different types or combinations of types of
Distribution Property in the Reorganization Event, the Distribution Property
will be deemed to include the types and amounts thereof distributed to a holder
that makes no election. If a Reorganization Event occurs and as a result the
Reference Amount is adjusted to consist of Distribution Property, the
Calculation Agent will make further adjustments for subsequent events that
affect such Distribution Property or any component type thereof, to the same
extent that it would make adjustments if the Basket 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, a cash amount that is computed by the value of all components
of the Reference Amount with respect to each Basket Stock 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.
If the Exchange Right is exercised or an Automatic Exchange occurs, the
Company will make a cash payment to the Holder based on the applicable Basket
Closing Level pursuant
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<PAGE> 24
to section 4, 6(a) or 6(b) as long as each Reference Amount consists only of the
corresponding Basket Stock. If a Reorganization Event occurs and a Reference
Amount consists of property other than the corresponding Basket Stock, then the
amount of cash the Company will pay -- for the portion of each $1,000 of the
Outstanding Face Amount of this Security being exchanged that corresponds to
such Reference Amount -- 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 a Basket Stock
Issuer, as determined by the Calculation Agent, such successor Person shall
thereupon be deemed to be such Basket Stock Issuer for all purposes of this
Security. If at any time a Reference Amount consists of Distribution Property,
as determined by the Calculation Agent, then all references in this Security to
the corresponding "Basket Stock" shall thereupon be deemed to mean such
Distribution Property and all references in this Security to a "share of Basket
Stock" shall thereupon be deemed to mean a comparable unit of each type of
property comprising such Distribution Property, as determined by the Calculation
Agent.
Notwithstanding the foregoing, however, the Calculation Agent will not make
any adjustment for a Reorganization Event unless the event becomes effective --
or, if the event is a Spin-Off Event, unless the Ex-Dividend Date for the
Spin-Off Event occurs -- after the Trade Date and on or before the relevant
Exchange Notice Date.
14. Minimum Adjustments.
Notwithstanding the foregoing, no adjustment will be required in respect of
any event specified in sections 8 through 13 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.
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15. Role of Calculation Agent.
The Calculation Agent will be solely responsible for all determinations and
calculations regarding the Closing Basket Level and the Closing Prices of the
Basket Stocks; Antidilution Adjustments; 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; whether an Automatic Exchange is to occur
on the Stated Maturity Date or any Call Date and as to the Section 6(a) Amount
or Section 6(b) Amount, including the relevant Pricing Date and the closing
level of the Basket on the Pricing Date and any alternative level to be used in
making this determination; as to the Exchange Rate and the amounts of cash
payable in exchange for this Security on the Stated Maturity Date or any
Exchange Date or Call Date; and all such other matters as may be specified
elsewhere herein as matters to be determined by the Calculation Agent. The
Calculation Agent shall make all such determinations and calculations in its
sole discretion, and absent manifest error all determinations and calculations
made by the Calculation Agent shall be final and binding on the Company, the
Holder and all other Persons having an interest in this Security, without
liability on the part of the Calculation Agent.
The Company shall take such action as shall be necessary to ensure that
there is at all relevant times a financial institution serving as the
Calculation Agent hereunder. The Company may, in its sole discretion at any time
and from time to time, upon written notice to the Trustee, but without notice to
the Holder of this Security, terminate the appointment of any Person serving as
the Calculation Agent and appoint another Person (including any Affiliate of the
Company) to serve as such agent. Insofar as this Security provides for the
Calculation Agent to obtain the Closing Prices of the Basket Stocks 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.
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16. Payment.
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 of cash 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 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 may be made
pursuant to the Applicable Procedures of the Depositary as permitted in said
Indenture.
17. Holidays.
Notwithstanding any provision of this Security or of the Indenture, if any
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 payment may be made
(or such principal or interest may be made available for payment) on the next
succeeding Business Day with the same force and effect as if such 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.
18. 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.
19. Certificate of Authentication.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse
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<PAGE> 27
hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next page)
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: December 12, 2000
THE GOLDMAN SACHS GROUP, INC.
By____________________________
Name:
Title:
Dated: December 12, 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> 29
(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> 30
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.
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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 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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