EX-4.3: EXPENSES AGREEMENT



 





EXHIBIT 4.3




AGREEMENT AS TO EXPENSES AND LIABILITIES




     AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of February 20, 2004,
between The Goldman Sachs Group, Inc., a Delaware corporation, in its capacity
as Holder (as defined in the Trust Agreement referred to below) of the Common
Securities referred to below (in such capacity, and together with its
successors in such capacity, the “Common Securityholder”), and Goldman Sachs
Capital I, a Delaware statutory trust (the “Issuer Trust”).



Witnesseth:




     Whereas, the Issuer Trust intends to issue its Common Securities (the
“Common Securities”) to and receive Junior Subordinated Debentures from The
Goldman Sachs Group, Inc. and to issue and sell 6.345% Capital Securities (the
“Capital Securities”) with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of
the Issuer Trust, dated as of February 20, 2004, as the same may be amended
from time to time (the “Trust Agreement”); and



     Whereas, the Common Securityholder will own all of the Common Securities
of the Issuer Trust; and



     Whereas, terms used but not defined herein have the meanings set forth in
the Trust Agreement.



     Now, Therefore, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged:



ARTICLE I




     Section 1.1 Guarantee by the Common Securityholder.



     Subject to the terms and conditions hereof, the Common Securityholder
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Issuer Trust is now or hereafter becomes indebted or liable (the
“Beneficiaries”) the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, “Obligations”
means any costs, expenses or liabilities of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due to such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.



     Section 1.2 Subordination of Guarantee.



     The guarantee and other liabilities and obligations of the Common
Securityholder under this Agreement shall constitute unsecured obligations of
the Common Securityholder and shall rank subordinate and junior in right of
payment to all Senior



 









 





Debt (as defined in the Indenture) of the Common
Securityholder to the extent and in the manner set forth in the Indenture with
respect to the Junior Subordinated Debentures, and the provisions of Article
XIV of the Indenture will apply, mutatis mutandis, to the obligations of the
Common Securityholder hereunder. The obligations of the Common Securityholder
hereunder do not constitute Senior Debt (as defined in the Indenture) of the
Common Securityholder.



     Section 1.3 Term of Agreement.



     This Agreement shall terminate and be of no further force or effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Capital Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Capital Securities or any Beneficiary must restore payment of any
sums paid in respect of the Capital Securities, under any Obligation, under the
Guarantee, or under this Agreement for any reason whatsoever.



     This Agreement shall be continuing, irrevocable, unconditional and absolute.



     Section 1.4 Waiver of Notice.



     The Common Securityholder hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and the
Common Securityholder hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.



     Section 1.5 No Impairment.



     The obligations, covenants, agreements and duties of the Common
Securityholder under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following: (a) the
extension of time for the payment by the Issuer Trust of all or any portion of
the Obligations or for the performance of any other obligation under, arising
out of, or in connection with, the Obligations; (b) any failure, omission,
delay or lack of diligence on the part of the Beneficiaries to enforce, assert
or exercise any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on the part of the
Issuer Trust granting indulgence or extension of any kind; or (c) the voluntary
or involuntary liquidation, dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer Trust or any of the
assets of the Issuer Trust.



There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Common Securityholder with respect to the happening of any
of the foregoing.



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     Section 1.6 Enforcement.



     A Beneficiary may enforce this Agreement directly against the Common
Securityholder and the Common Securityholder waives any right or remedy to
require that any action be brought against the Issuer Trust or any other person
or entity before proceeding against the Common Securityholder.



     Section 1.7 Subrogation.



     The Common Securityholder shall be subrogated to all (if any) rights of
the Issuer Trust in respect of any amounts paid to the Beneficiaries by the
Common Securityholder under this Agreement; provided, however, that the Common
Securityholder shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.



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ARTICLE II




     Section 2.1 Binding Effect.



     This Agreement shall bind the successors, receivers, trustees and
representatives of the Common Securityholder and shall inure to the benefit of
the Beneficiaries.



     Section 2.2 Amendment.



     So long as there shall remain any Beneficiary or any Capital Securities
shall be outstanding, this Agreement may not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Capital Securities,
as the case may be.



     Section 2.3 Notices.



     Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against
receipt therefor by facsimile transmission (confirmed by mail), telex or by
registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex):




	 	 	 	Goldman Sachs Capital I

c/o The Goldman Sachs Group, Inc.

85 Broad Street

New York, NY 10004

Facsimile No.: 212-902-3325

Attention: Corporate Treasury – Debt Administration


The Goldman Sachs Group, Inc.

85 Broad Street

New York, NY 10004

Facsimile No.: 212-902-3325

Attention: Corporate Treasury – Debt Administration





     Section 2.4 Governing Law.



     THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



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EXHIBIT 4.3




     In Witness Whereof, the undersigned have executed this Agreement as of the
date first above written.



	 	 	 	 	 
	 	 	The Goldman Sachs Group, Inc.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Veronica Foo
	

	 	 	 	
 
	

	 	 	 	Name: Veronica Foo
	

	 	 	 	Title: Assistant Treasurer
	 
	 	 	 	 
	 	 	Goldman Sachs Capital I
	 
	 	 	 	 
	

	 	By:
	 	/s/ Veronica Foo
	

	 	 	 	
 
	

	 	 	 	Name: Veronica Foo
	

	 	 	 	Administrative Trustee