EX-4.1: SUPPLEMENTAL INDENTURE



 





EXHIBIT 4.1















THE GOLDMAN SACHS GROUP, INC.,

as Issuer




TO




THE BANK OF NEW YORK,

as Trustee










Supplemental Indenture




Dated as of February 20, 2004










$2,835,052,000




6.345% Junior Subordinated Debentures Due February 15, 2034
















 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page

	ARTICLE ONE	 	DEFINITIONS
	 	 	2	 
	 	Section 1.1	 	 	Provisions of the Indenture
	 	 	2	 
	 	Section 1.2	 	 	Definitions
	 	 	2	 
	ARTICLE TWO	 	GENERAL TERMS AND CONDITIONS ON THE NOTES
	 	 	8	 
	 	Section 2.1	 	 	Designation and Principal Amount
	 	 	8	 
	 	Section 2.2	 	 	Notices to Trustee and Company by Capital Securities Holders
	 	 	10	 
	 	Section 2.3	 	 	Deferrals of Interest Payment Dates
	 	 	11	 
	 	Section 2.4	 	 	Rights of Set-Off
	 	 	12	 
	 	Section 2.5	 	 	Acceleration of Maturity; Rescission and Annulment
	 	 	12	 
	 	Section 2.6	 	 	Direct Action by Holders of Capital Securities
	 	 	13	 
	 	Section 2.7	 	 	Restoration of Rights and Remedies of Holders of Capital Securities
	 	 	13	 
	 	Section 2.8	 	 	Delay or Omission by Holders of Capital Securities Not Waiver
	 	 	14	 
	 	Section 2.9	 	 	Waiver of Past Defaults by Holders of Capital Securities
	 	 	14	 
	 	Section 2.10	 	 	Supplemental Indentures With Consent of Holders
	 	 	14	 
	 	Section 2.11	 	 	Additional Sums
	 	 	15	 
	 	Section 2.12	 	 	Additional Covenants
	 	 	15	 
	 	Section 2.13	 	 	Election to Redeem; Notice to Trustee
	 	 	17	 
	 	Section 2.14	 	 	Right of Redemption
	 	 	17	 
	ARTICLE THREE	 	MISCELLANEOUS PROVISIONS
	 	 	18	 
	 	Section 3.1	 	 	Separability of Invalid Provisions
	 	 	18	 
	 	Section 3.2	 	 	Execution in Counterparts
	 	 	18	 
	 	Section 3.3	 	 	Benefits of Indenture for Holders of Capital Securities
	 	 	18	 
	 	Section 3.4	 	 	Governing Law
	 	 	19	 







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     SUPPLEMENTAL INDENTURE, dated as of February 20, 2004, between The Goldman
Sachs Group, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (the “Company”), having its principal office at 85 Broad
Street, New York, New York 10004, and The Bank of New York, a New York banking
corporation, as Trustee, to the Subordinated Debt Indenture, dated as of
February 20, 2004, between the Company and the Trustee (the “Original
Indenture”).



W I T N E S S E T H :




     WHEREAS, the Original Indenture provides for the issuance from time to
time thereunder, in one or more series, of unsecured debentures, notes or other
evidence of indebtedness of the Company, and Section 301 of the Original
Indenture provides for the establishment of the form or terms of Securities of
any series issued thereunder, and any additions to, changes in or eliminations
of any provisions of the Original Indenture in respect of such series as
provided therein, through one or more supplemental indentures;



     WHEREAS, the Company desires by this Supplemental Indenture to (1) create
a series of Securities to be issuable under the Original Indenture, as
supplemented by this Supplemental Indenture, and to be known as the Company’s
6.345% Junior Subordinated Debentures Due February 15, 2034, which are to be
limited in aggregate principal amount as specified in this Supplemental
Indenture and the terms and provisions of which are to be as specified in this
Supplemental Indenture, and (2) to add to, change or eliminate specified
provisions of the Original Indenture solely insofar as they apply to the
Subordinated Indentures and the Holders thereof;



     WHEREAS, the Junior Subordinated Debentures shall be issued to evidence
loans made to the Company of the proceeds from the issuance by the Issuer Trust
of 6.345% preferred undivided beneficial interests in the Issuer Trust issued
pursuant to the Trust Agreement (as they may be amended from time to time, the
“Capital Securities”) and common undivided beneficial interests in the Issuer
Trust issued pursuant to the Trust Agreement (as they may be amended from time
to time, the “Common Securities” and, together with the Capital Securities, the
“Trust Securities”);



     WHEREAS, the Company has duly authorized the execution and delivery of
this Supplemental Indenture to establish the Junior Subordinated Debentures as
a series of Securities under the Original Indenture and to provide for, among
other things, the issuance of and the form and terms of the Junior Subordinated
Debentures and additions to, changes in or eliminations of specified provisions
of the Original Indenture solely insofar as they apply to the Junior
Subordinated Debentures and the Holders thereof; and



     WHEREAS, all things necessary to make this Supplemental Indenture a valid
agreement according to its terms have been done.



     NOW, THEREFORE, for and in consideration of the premises and the purchase
and acceptance of the Junior Subordinated Debentures by the Holders thereof and
for the purpose of setting forth, as provided in the Original Indenture, the
form of the Junior



 









 





Subordinated Debentures and the terms, provisions and conditions thereof
(including additions to, changes in and eliminations of specified provisions of
the Original Indenture as aforesaid), the Company covenants and agrees with the
Trustee as follows:



ARTICLE ONE




DEFINITIONS




Section 1.1 Provisions of the Indenture




     Except insofar as herein otherwise expressly provided, all the
definitions, provisions, terms and conditions of the Indenture shall remain in
full force and effect. The Indenture, as amended and supplemented by this
Supplemental Indenture, is in all respects ratified and confirmed. The
Indenture and this Supplemental Indenture shall be read, taken and considered
as one and the same instrument for all purposes and every Holder of Junior
Subordinated Debentures authenticated and delivered under the Indenture (and
every holder of Senior Debt with respect to the Junior Subordinated Debentures)
shall be bound hereby.



Section 1.2 Definitions




     For all purposes of this Supplemental Indenture and the Junior
Subordinated Debentures, except as herein otherwise expressly provided or
unless the subject matter or context hereof otherwise requires:




          (a) any reference to an “Article” or a “Section” refers to an
Article or Section, as the case may be, of this Supplemental Indenture;




          (b) the words “herein”, “hereof” and “hereunder” and other words of
similar import refer to this Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;




          (c) all terms used in this Supplemental Indenture that are defined
in the Indenture have the meanings assigned to them in the Indenture,
except as otherwise provided in this Supplemental Indenture;




          (d) the term “Securities” as defined in the Indenture and as used in
any definition therein, shall be deemed to include or refer to, as
applicable, the Junior Subordinated Debentures; and




          (e) the following terms have the meanings given to them in this
Section 1.2:



     “Additional Amounts” has the meaning set forth in the Trust Agreement.



     “Additional Interest” has the meaning set forth in Section 2.1.



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     “Additional Sums” has the meaning set forth in Section 2.11.



     “Additional Taxes” means the sum of any additional taxes, duties and other
governmental charges to which the Issuer Trust has become subject from time to
time as a result of a Tax Event.



     “Administrative Trustees” has the meaning set forth in the Trust
Agreement.



     “Allocable Amounts”, when used with respect to any Senior Subordinated
Indebtedness, means the amount necessary to pay all principal of (and premium,
if any) and interest, if any, on such Senior Subordinated Indebtedness in full
less, if applicable, any portion of such amount which would have been paid to,
and retained by, the holders of such Senior Subordinated Indebtedness (whether
as a result of the receipt of payments by the holders of such Senior
Subordinated Indebtedness from the Company, the trustee in respect thereof or
any other obligor thereon or from any holders of, or trustee in respect of,
other indebtedness that is subordinate and junior in right of payment to such
Senior Subordinated Indebtedness pursuant to any provision of such indebtedness
for the payment over of amounts received on account of such indebtedness to the
holders of such Senior Subordinated Indebtedness) but for the fact that such
Senior Subordinated Indebtedness is subordinate or junior in right of payment
to trade accounts payable or accrued liabilities arising in the ordinary course
of business.



     “Capital Securities” has the meaning specified in the third recital of
this Supplemental Indenture.



     “Common Securities” has the meaning specified in the third recital of this
Supplemental Indenture.



     “Comparable Treasury Issue” means, with respect to any Redemption Date,
the U.S. Treasury security selected by the Quotation Agent as having a maturity
comparable to the time period from such Redemption Date to February 15, 2034
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to this time period; provided, however, that
if no U.S. Treasury security has a maturity which is within a period from three
months before to three months after February 15, 2034, the two most closely
corresponding U.S. Treasury securities, as selected by the Quotation Agent,
will be used as the Comparable Treasury Issue.



     “Comparable Treasury Price” means, with respect to any Redemption Date,
(a) the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such quotations, in
either case (a) or (b) as determined by the Trustee.



     “Defaulted Interest” means (1) a regular installment of interest that
first becomes due and payable on the Junior Subordinated Debentures on an
Interest Payment Date that



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does not fall during an Extension Period, but as to which payment is not
made or duly provided for on such Interest Payment Date, and (2) a regular
installment of interest that would otherwise first become due and payable on
the Junior Subordinated Debentures on an Interest Payment Date that falls
during an Extension Period, but which, because of the deferral of interest
during such period, does not first become due and payable until the day on
which such period ends, and as to which payment is not made or duly provided
for on the day such period ends. Defaulted Interest does not include Other
Interest, Additional Interest or any other interest.



     “Deferred Interest” means a regular installment of interest that would
otherwise first become due and payable on the Junior Subordinated Debentures on
an Interest Payment Date that falls during an Extension Period, but which,
because of the deferral of interest during such period, does not first become
due and payable until the day on which such period ends. Deferred Interest
does not become Defaulted Interest unless and until payment thereof becomes due
on the day the relevant Extension Period ends and is not made or duly provided
for on such day (whereupon it ceases to be Deferred Interest and becomes
Defaulted Interest). Deferred Interest does not include Additional Interest,
Other Interest or any other Interest.



     “Delaware Trustee” means, at any time, the commercial bank or trust
company that is then the Delaware Trustee pursuant to the Trust Agreement,
solely in its capacity as Delaware Trustee under the Trust Agreement and not in
its individual capacity.



     “Distributions” means amounts payable in respect of the Capital Securities
as provided in the Trust Agreement and referred to therein as “Distributions”.



     “Extension Period” has the meaning set forth in Section 2.3.



     “Goldman Sachs Guarantee” means the guarantee by the Company of
distributions on the Capital Securities to the extent provided in the Guarantee
Agreement.



     “Guarantee Agreement” means the Guarantee Agreement, dated as of February
20, 2004, between the Company and The Bank of New York, as trustee, as it may
be amended from time to time.



     “Holder”, solely when used with respect to the Capital Securities, has the
meaning set forth in the Trust Agreement.



     “Indenture” means the Original Indenture as originally executed, as it is
supplemented and amended by this instrument and as it may from time to time be
further supplemented or amended by one or more other indentures supplemental
thereto entered into pursuant to the applicable provisions thereof, including,
for all purposes of such instrument, this instrument and any such other
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern such instrument, this instrument and any such
other supplemental indenture, respectively. The term



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“Indenture” shall also include the terms of particular series of
Securities established as contemplated by Section 301 thereof.



     “Investment Company Event” means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters that states that, as a result of
an amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or governmental agency or regulatory authority thereof or therein,
or as a result of any official administrative pronouncement (including any
interpretation, release, no-action letter, regulatory procedure, notice or
announcement (including any notice or announcement of an intent to adopt any
interpretation, procedures or regulations) or action or any judicial decision
interpreting or applying such laws or regulations, whether or not the
pronouncement, action or decision is issued to or in connection with a
proceeding involving the Company or the Issuer Trust or is subject to review or
appeal, which amendment or change is effective, or which pronouncement, action
or decision is announced or occurs, on or after the date of the issuance of the
Capital Securities, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an “investment company” that is required to be
registered under the Investment Company Act of 1940.



     “Issuer Trust” has the meaning set forth in the Trust Agreement and
includes any assignee thereof or successor thereto permitted under the Trust
Agreement (and on the date hereof is Goldman Sachs Capital I).



     “Issuer Trustees” means the Administrative Trustees, the Delaware Trustee
and the Property Trustee.



     “Junior Subordinated Debentures” means the series of Securities identified
in Section 2.1, as they may be amended from time to time.



     “Junior Subordinated Indebtedness” means any obligation of the Company to
its creditors, whether now outstanding or subsequently incurred, as to which,
in the instrument creating or evidencing the obligation or pursuant to which
the obligation is outstanding, it is provided that the obligation is
subordinated and junior in right of payment to Senior Debt pursuant to
subordination provisions (including the definition of Senior Debt)
substantially similar to those set forth in the Indenture with respect to the
Junior Subordinated Debentures. “Junior Subordinated Indebtedness” includes
the Junior Subordinated Debentures.



     “Liquidation Amount” has the meaning set forth in the Trust Agreement.



     “Opinion of Counsel” has the meaning set forth in the Trust Agreement.



     “Other Amounts” has the meaning set forth in the Trust Agreement.



     “Other Interest” has the meaning set forth in Section 2.1.



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     “Outstanding”, solely when used with respect to the Capital Securities,
has the meaning set forth in the Trust Agreement.



     “Premium” has the meaning assigned in Section 2.14.



     “Property Trustee” means, at any time, the commercial bank or trust
company (or other Person) that is then the Property Trustee pursuant to the
Trust Agreement, solely in its capacity as Property Trustee under the Trust
Agreement and not in its individual capacity.



     “Quotation Agent” means Goldman, Sachs & Co. or, if Goldman, Sachs & Co.
ceases to be a primary U.S. Government securities dealer in New York City (or
for any reason ceases to be the Quotation Agent), such other primary U.S.
Government securities dealer selected by the Company.



     “Reference Treasury Dealer” means (1) the Quotation Agent and (2) any
other primary U.S. Government securities dealer selected by the Quotation Agent
after consultation with the Company.



     “Reference Treasury Dealer Quotations” means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and ask prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.



     “Senior Debt” means (i) Senior Indebtedness (but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business) and
(ii) the Allocable Amounts of Senior Subordinated Indebtedness. For purposes
of determining “Senior Debt” with respect to the Junior Subordinated
Debentures, accrued liabilities arising in the ordinary course of business
shall not include indebtedness for money borrowed.



     “Senior Indebtedness” means any obligation of the Company to its
creditors, whether now outstanding or subsequently incurred, other than any
obligation as to which, in the instrument creating or evidencing the obligation
or pursuant to which the obligation is outstanding, it is provided that the
obligation is not Senior Indebtedness; provided that Senior Indebtedness does
not include Senior Subordinated Indebtedness or Junior Subordinated
Indebtedness.



     “Senior Subordinated Indebtedness” means any obligation of the Company to
its creditors, whether now outstanding or subsequently incurred, as to which,
in the instrument creating or evidencing the obligation or pursuant to which
the obligation is outstanding, it is provided that the obligation is
subordinate and junior in right of payment to Senior Indebtedness pursuant to
subordination provisions (including the definition of “Senior Indebtedness”)
that are not substantially similar to those applicable


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to the Junior Subordinated Debentures (provided that the obligation is not
subordinate and junior in right of payment to Junior Subordinated
Indebtedness).



     “Tax Event” means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement (including any notice or announcement of intent to adopt any
procedures or regulations)) or action or judicial decision interpreting or
applying such laws or regulations, whether or not the pronouncement or decision
is issued to or in connection with a proceeding involving the Company or the
Issuer Trust or is subject to review or appeal, which amendment or change is
effective, or which pronouncement, action or decision is announced or occurs,
on or after the date of issuance of the Capital Securities, there is more than
an insubstantial risk that:



     (1) the Issuer Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to United States Federal income tax with respect to
income received or accrued on the Junior Subordinated Debentures by the Issuer
Trust,



     (2) interest payable by the Company on the Junior Subordinated Debentures
is not, or within 90 days of the date of such Opinion of Counsel, will not be,
deductible by the Company, in whole or in part, for United States Federal
income tax purposes, or



     (3) the Issuer Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.



     “Treasury Rate” means (1) the yield, under the heading which represents
the average for the week immediately prior to the date of calculation,
appearing in the most recently published statistical release designated
H.15(519) or any successor publication which is published weekly by the Federal
Reserve and which establishes yields on actively traded U.S. Treasury
securities adjusted to constant maturity under the caption “Treasury Constant
Maturities”, for the maturity corresponding to the time period from the
Redemption Date to February 15, 2034, or if no maturity is within three months
before or after this time period, yields for the two published maturities most
closely corresponding to this time period will be determined and the Treasury
Rate will be interpolated or extrapolated from those yields on a straight-line
basis, rounding to the nearest month, or (2) if the release or any successor
release is not published during the week preceding the calculation date or does
not contain such yields, the annual rate equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue, expressed as a percentage of its principal
amount, equal to the Comparable Treasury Price for the Redemption Date, in



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each case (1) and (2) as determined by the Quotation Agent on the third
Business Day preceding the Redemption Date.



     “Trust Agreement” means the Amended and Restated Trust Agreement, dated as
of February 20, 2004, among the Company, the Property Trustee, the
Administrative Trustees, the Delaware Trustee and the holders of the Trust
Securities, as amended from time to time.



     “Trust Securities” has the meaning specified in the third recital of this
Supplemental Indenture.



ARTICLE TWO




GENERAL TERMS AND CONDITIONS ON THE NOTES




Section 2.1 Designation and Principal Amount




     There is hereby authorized and established pursuant to Section 301 of the
Indenture a series of Securities designated the 6.345% Junior Subordinated
Debentures Due February 15, 2034 (the “Junior Subordinated Debentures”), in an
aggregate principal amount of $2,835,052,000 and having the terms provided for
herein (including Annex A hereto). The principal of the Junior Subordinated
Debentures shall be due and payable at the Stated Maturity.



     The aggregate principal amount of the Junior Subordinated Debentures shall
be limited to such specified amount (except for Securities of the kind
contemplated by Section 301(2) of the Indenture).



     The Junior Subordinated Debentures shall be known and designated as the
“6.345% Junior Subordinated Debentures Due February 15, 2004” of the Company.
Their Stated Maturity shall be February 15, 2034 and they shall bear interest
at the rate of 6.345% per annum, from February 20, 2004 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, as
the case may be, payable semi-annually in arrears on February 15 and August 15,
commencing August 15, 2004, until the principal thereof is paid or made
available for payment, subject to deferral in Section 2.3. Notwithstanding the
foregoing, any Interest Payment Date that would otherwise be a day that is not
a Business Day shall instead be the next succeeding Business Day, unless such
next succeeding Business Day would fall in a different calendar year, in which
case such Interest Payment Date shall be the next preceding Business Day.



     Any Defaulted Interest shall also bear interest at the rate of 6.345% per
annum (“Other Interest”), from the day such Defaulted Interest becomes due and
payable to the day payment thereof is made or duly provided for and shall be
payable on demand, provided that Other Interest shall accrue and be payable
only to the extent that such accrual and payment are legally enforceable and
are not duplicative of other amounts and



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payment thereof shall be subject to deferral in Section 2.3. Any Deferred
Interest shall also bear interest at the rate of 6.345% per annum (“Additional
Interest”), from the Interest Payment Date on which such Deferred Interest
would otherwise first become due and payable but for the fact that such date
falls during an Extension Period to the day on which such period ends (whether
or not payment of such Deferred Interest is made or duly provided for on such
day), and shall be due and payable together with such Deferred Interest on such
day, as if such day were the scheduled Interest Payment Date for such Deferred
Interest (and the record date and payment provisions shall apply thereto
accordingly), provided that Additional Interest shall accrue and be payable
only to the extent that such accrual and payment are legally enforceable and
are not duplicative of other amounts and shall be subject to deferral in
Section 2.3. (No interest shall accrue or be payable on any interest that has
accrued in respect of the Junior Subordinated Debentures, except for Other
Interest and Additional Interest, which shall accrue and be payable only on
Defaulted Interest and Deferred Interest, respectively (and not on Other
Interest, Additional Interest or any other amount) and only to the extent
provided in this Section and Section 2.3.)



     The Regular Record Date for the interest payable on any Interest Payment
Date is the close of business on the Business Day next preceding the Interest
Payment Date if the Junior Subordinated Debentures are then represented by a
Global Security and is in all other cases the close of business (or 5:00 P.M.,
New York City time, if the Regular Record Date is not a Business Day) on
February 1 and August 1, as the case may be, next preceding the relevant
Interest Payment Date (subject to Section 307 of the Indenture). Interest on
the Junior Subordinated Debentures shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in any
partial month in a period.



     The Junior Subordinated Debentures shall be subject to redemption as
provided in Section 2.14.



     The indebtedness evidenced by the Junior Subordinated Debentures shall be,
to the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Debt. Solely with respect
to the subordination of the Junior Subordinated Debentures, “Senior Debt” shall
have the meaning set forth in Section 1.2.



     The Junior Subordinated Debentures shall be in substantially the form set
forth in Annex A hereto, with such appropriate insertions, notations, legends
and other variations as are required or permitted by the Indenture.



     The Junior Subordinated Debentures and the rights and duties of the
Company, the Trustee, any Paying Agent, the Holders thereof (and of the
Securities of any other series), the holders of Senior Debt in respect of the
Junior Subordinated Debentures and the Holders of Capital Securities shall be
subject to and governed by the Indenture (including as it has been amended and
supplemented by this Supplemental Indenture and



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as it may be hereinafter amended or supplemented by any indenture
supplemental thereto pursuant to the applicable provisions thereof) insofar as
the Indenture shall be applicable.



     The provisions for Defeasance and Covenant Defeasance in Article XIII of
the Indenture shall not apply to the Junior Subordinated Debentures.



     Any payment of principal, premium or interest in respect of the Junior
Subordinated Debentures that would otherwise be due on a day that is not a
Business Day may be made on the next succeeding Business Day, unless such next
succeeding Business Day would fall in a different calendar year, in which case
such payment may be made on the next preceding Business Day, in each case with
the same force and effect as if made on the original date (and with no interest
or penalty payable in respect of any such change in payment date). To the
extent that this paragraph is inconsistent with Section 113 of the Indenture,
this paragraph shall apply to the Junior Subordinated Debentures in lieu of
said Section 113.



     The Junior Subordinated Debentures shall initially not be issued in the
form of a Global Security. However, at any time after the date hereof, upon
the request of the Property Trustee at a time when the Property Trustee is the
Holder of all the Outstanding Junior Subordinated Debentures and the approval
of the Company, the Junior Subordinated Debentures may be exchanged pursuant to
Section 305 of the Indenture for a like principal amount of Junior Subordinated
Debentures in the form of one or more Global Securities. Any such Global
Securities shall be substantially in the form of Annex A hereto, with the
appropriate legends and other insertions made as indicated in Annex A.



     To the extent permitted by the Trust Indenture Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under the
Indenture and a trustee under the Trust Agreement and the Guarantee Agreement.



Section 2.2 Notices to Trustee and Company by Capital Securities Holders



     Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders of Junior Subordinated Debentures or other document provided or
permitted by the Indenture to be made upon, given or furnished to, or filed
with,



     (1) the Trustee by any Holder of Capital Securities shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or



     (2) the Company by any Holder of Capital Securities shall be sufficient
for every purpose hereunder (unless otherwise expressly provided in the
Indenture) if in writing and mailed, first-class, postage prepaid, to the
Company addressed to it at the address of its principal office specified in the
first paragraph of the Indenture or at any other address previously furnished
in writing to the Trustee by the Company.



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Section 2.3 Deferrals of Interest Payment Dates



     So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of the Junior Subordinated
Debentures, and from time to time, to defer the payment of interest on the
Junior Subordinated Debentures for a period of up to 10 consecutive semi-annual
interest periods (each, an “Extension Period”) during which Extension Period
the Company shall have the right to make partial or no payments of interest on
any Interest Payment Date; provided, however, that no Extension Period shall
extend beyond the Maturity of the principal of the Junior Subordinated
Debentures and provided, further, that during any such Extension Period, the
Company shall comply with Section 2.12 as applicable. No Extension Period
shall end on a date other than an Interest Payment Date. At the end of any
such Extension Period the Company shall pay all interest then accrued and
unpaid on the Junior Subordinated Debentures as provided below. Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period shall extend beyond
10 consecutive semi-annual interest periods or beyond the Maturity of the
principal of the Junior Subordinated Debentures. Upon termination of any
Extension Period and upon the payment of all accrued and unpaid interest then
due, the Company may elect to begin a new Extension Period, subject to the
above conditions.



     No interest shall be due and payable during an Extension Period, except at
the end thereof and non-payment of interest during an Extension Period shall
not result in any default under the Indenture (and any default in the payment
of interest that has occurred but has not become an Event of Default prior to
such Extension Period shall be deemed cured until such period ends). The
preceding sentence shall apply (i) to Deferred Interest and Additional
Interest, and (ii) to Defaulted Interest and Other Interest so that, upon
commencement of such Extension Period, all such interest described in clauses
(i) and (ii) shall be deferred and shall not become, or shall cease to be, as
applicable, due and payable until the end of such Extension Period for all
purposes of the Junior Subordinated Debentures and the Indenture (including for
purposes of determining whether any default or Event of Default has occurred).
During an Extension Period, (a) Additional Interest shall accrue on Deferred
Interest that would otherwise have first become due and payable on an Interest
Payment Date during such period, from such Interest Payment Date to the day on
which such period ends, and shall become due and payable on such day to the
Person to whom such Deferred Interest is payable, and (b) Other Interest shall
continue to accrue on any Defaulted Interest that has not been paid or duly
provided for, but shall cease to be due and payable when the Extension Period
begins and shall become due and payable upon demand after such period ends (the
corresponding Defaulted Interest shall also cease to be due and payable when
the Extension Period begins until it ends), in each case (a) and (b), subject
to any further deferral pursuant to this Section and to Section 307 of the
Indenture and only to the extent that payment of such interest is legally
enforceable and is not duplicative.



-11-









 





     The Company shall give the Issuer Trustees notice of its election to begin
any such Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on Junior Subordinated
Debentures would be payable but for such deferral or, so long as the Junior
Subordinated Debentures are held by the Issuer Trust, prior to the earlier of
(i) the next succeeding date on which Distributions on the Capital Securities
would become payable but for such deferral or (ii) the date the Property
Trustee is required to give notice to any securities exchange or other
applicable self-regulatory organization or to holders of the Capital Securities
of the record date or payment date for such Distributions, but in any event not
less than one Business Day prior to such record date.



     The Trustee, at the expense of the Company, shall promptly give notice of
the Company’s election to begin any such Extension Period to the Holders of the
Junior Subordinated Debentures.



Section 2.4 Rights of Set-Off




     The Company shall have the right to set-off any payment it is otherwise
required to make hereunder in respect of any Junior Subordinated Debenture to
the extent the Company has theretofore made, or is concurrently on the date of
such payment making, a payment under the Goldman Sachs Guarantee relating to
the Capital Securities or under Section 508 of the Indenture.



Section 2.5 Acceleration of Maturity; Rescission and Annulment




     Notwithstanding Section 502 of the Indenture, if an Event of Default with
respect to the Junior Subordinated Debentures (other than an Event of Default
specified in Section 501(5) or 501(6) of the Indenture) occurs and is
continuing, and if the Trustee and the Holders of not less than 25% in
aggregate principal amount of the Outstanding Junior Subordinated Debentures
fail to declare the principal of all the Junior Subordinated Debentures to be
immediately due and payable, the Holders of at least 25% in aggregate
Liquidation Amount of the Capital Securities then Outstanding shall have such
right, which they may exercise by giving a notice in writing to the Company and
the Trustee; and upon any such declaration the principal amount of and the
accrued interest on all the Junior Subordinated Debentures shall become
immediately due and payable. Payment of principal and interest on such
Securities shall remain subordinated to the extent provided in Article XIV of
the Indenture notwithstanding that such amount shall become immediately due and
payable as herein provided.



     At any time after such a declaration of acceleration with respect to the
Junior Subordinated Debentures has been made by the Holders of Capital
Securities and before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in aggregate
Liquidation Amount of the Capital Securities then Outstanding shall have the
right to, by written notice to the Company and the Trustee, rescind and annul
such declaration and its consequences if:



-12-









 





     (1) The Company has paid or deposited with the Trustee a sum sufficient to
pay:




          (A) all overdue interest on all Junior Subordinated Debentures,




          (B) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate borne by
the Junior Subordinated Debentures, and




          (C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and



     (2) all Events of Default with respect to Junior Subordinated Debentures,
other than the non-payment of the principal of Junior Subordinated Debentures
which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513 of the Indenture.



     No such rescission shall affect any subsequent default or impair any right
consequent thereon.



Section 2.6 Direct Action by Holders of Capital Securities




     Any Holder of Capital Securities shall have the right, upon the occurrence
of an Event of Default with respect to the Junior Subordinated Debentures
described in Section 501(1) or 501(2) of the Indenture, to institute a suit
directly against the Company for enforcement of payment to such Holder of
principal of (premium, if any) and (subject to Section 307 of the Indenture)
interest on the Outstanding Junior Subordinated Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Outstanding Capital
Securities held by such Holder, in each case in accordance with the Indenture
and the Junior Subordinated Debentures.



Section 2.7 Restoration of Rights and Remedies of Holders of Capital Securities



     If any Holder of Capital Securities has instituted any proceeding to
enforce any right or remedy under Section 2.6 and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder of Capital Securities, then and in every such case such Holder of
Capital Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to its former positions hereunder, and
thereunder all rights and remedies of the Holders of Capital Securities shall
continue as though no such proceeding had been instituted.



-13-









 





Section 2.8 Delay or Omission by Holders of Capital Securities Not Waiver



     No delay or omission of the Holder of any Capital Security to exercise any
right or remedy accruing upon any Event of Default pursuant to Section 2.5 or
Section 2.6 shall impair any such right or remedy or constitute a waiver of any
such Event of Default or any acquiescence therein. Every right and remedy
given to the Holders of Capital Securities may be exercised from time to time,
and as often as may be deemed expedient, by the Holders of Capital Securities.



Section 2.9 Waiver of Past Defaults by Holders of Capital Securities




     The holders of not less than a majority in Liquidation Amount of the
Outstanding Capital Securities may on behalf of the Holders of all Capital
Securities waive any past default under the Indenture with respect to the
Junior Subordinated Debentures and its consequences except a default:



     (1) in the payment of the principal of (or premium, if any) or interest on
any Junior Subordinated Debenture (unless a sum sufficient to pay all overdue
interest, premium (if any) and principal due in respect of such Junior
Subordinated Debenture otherwise than by acceleration has been deposited with
the Trustee), or



     (2) in respect of a covenant or provision of the Indenture which under
Section 2.10 cannot be modified or amended without the consent of the Holder of
each Outstanding Capital Security.



     Any such waiver shall be deemed to be on behalf of the Holders of all
Capital Securities.



     Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.



Section 2.10 Supplemental Indentures With Consent of Holders




     Notwithstanding Section 901(10) of the Indenture, so long as any Capital
Securities remain Outstanding, no amendment pursuant to Section 901(10) of the
Indenture shall be made that adversely affects the Holders of the Capital
Securities in any material respect.



     If action is to be taken that, pursuant to Section 902 of the Indenture,
would affect the Junior Subordinated Debentures and would require the consent
of the Holders of a majority in principal amount of the Outstanding Securities
of all series affected by such action, considered together as one class for
this purpose, such action shall also require the consent of the Holders of a
majority in principal amount of the Outstanding Junior Subordinated Debentures,
acting as a separate series.



-14-









 





     Notwithstanding Section 902 of the Indenture or the prior paragraph above,
so long as any Capital Securities remain Outstanding, (1) no amendment pursuant
to Section 902 of the Indenture shall be made that adversely affects the
Holders of the Capital Securities in any material respect (and no termination
of, and no waiver of any Event of Default or compliance with any covenant
under, the Indenture that adversely affects the Holders of the Capital
Securities in any material respect shall be effective) without the prior
consent of the Holders of at least a majority of the aggregate Liquidation
Amount of the Capital Securities then Outstanding, in each case unless and
until the principal (and premium, if any) of the Junior Subordinated Debentures
and all accrued and, subject to Section 307 of the Indenture, unpaid interest
thereon have been paid or duly provided for in full and (2) no amendment
pursuant to Section 902 of the Indenture shall be made to Section 2.6 or this
clause (2) of this Section 2.10 that would impair the rights of the Holders of
Capital Securities provided in Section 2.6 or this clause (2) without the prior
consent of the Holder of each Capital Security then Outstanding affected
thereby unless and until the principal (and premium, if any) of the Junior
Subordinated Debentures and all accrued and (subject to Section 307 of the
Indenture) unpaid interest thereon have been paid or duly provided for in full.



Section 2.11 Additional Sums




     In the case of the Junior Subordinated Debentures, so long as no Event of
Default has occurred and is continuing, in the event that (1) the Issuer Trust
is the Holder of all of the Junior Subordinated Debentures and (2) a Tax Event
shall have occurred and be continuing, the Company shall pay to the Issuer
Trust as Holder of the Junior Subordinated Debentures for so long as the Issuer
Trust is the registered Holder of any Junior Subordinated Debentures, such
additional sums as may be necessary in order that the amount of Distributions
(including any Other Amounts and Additional Amounts) paid by the Issuer Trust
on the Capital Securities and Common Securities that at any time remain
Outstanding in accordance with the terms thereof shall not be reduced as a
result of any Additional Taxes (the “Additional Sums”). Whenever in the
Indenture or Junior Subordinated Debentures there is a reference in any context
to the payment of principal of or interest on the Junior Subordinated
Debentures, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the deferral of the
payment of interest pursuant to Section 2.3 or the Junior Subordinated
Debentures shall not defer the payment of any Additional Sums that may be due
and payable.



Section 2.12 Additional Covenants




     The Company covenants and agrees with each Holder of Junior Subordinated
Debentures that it shall not, and it shall not permit any Subsidiary of the
Company to,



-15-









 





(1) declare or pay any dividends or other distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any shares of
the Company’s capital stock, (2) make any payment of principal of or interest
or premium, if any, on, or repay, repurchase or redeem, any debt securities of
the Company that rank pari passu in all respects with or junior in interest in
all respects to the Junior Subordinated Debentures or (3) make any guarantee
payments with respect to any guarantee by the Company of debt securities of any
Subsidiary of the Company if such guarantee ranks pari passu in all respects
with or junior in interest in all respects to the Junior Subordinated
Debentures, in each case (1), (2) and (3) other than:




          (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants of the Company
or any Subsidiary or Affiliate, in connection with a dividend
reinvestment or shareholder stock purchase plan or in connection with the
issuance of capital stock of the Company (or securities convertible into
or representing a right to acquire such stock) as consideration in an
acquisition transaction entered into prior to the Extension Period,




          (B) as a result of an exchange or conversion of any class or series
of the capital stock of the Company or any subsidiary of the Company or
any other indebtedness for any class or series of the capital stock,




          (C) the purchase or other acquisition of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted
or exchanged or resulting from a reclassification of the Company’s
capital stock,




          (D) any declaration of a dividend in connection with the
implementation or amendment of the Company shareholders’ rights plan (or
any successor thereto), or the issuance of rights, stock or other
property under any such rights plan, or the redemption or repurchase of
rights pursuant thereto,




          (E) any dividend, liquidation payment or other distribution in the
form of stock, warrants, options or other rights where the stock being
distributed or issuable upon exercise of such warrants, options or other
rights is the same stock as that on which the distribution is being made
or ranks pari passu with or junior in interest to such stock, or




          (F) payments under the Goldman Sachs Guarantee,



in each case (1), (2) and (3) if at such time the Company shall have given
notice of its election to begin an Extension Period with respect to the Junior
Subordinated Debentures as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing. For purposes hereof, the Company’s Senior




-16-










 




Debt shall not be deemed to be pari passu with or junior in interest to the
Junior Subordinated Debentures.




     The Company also covenants with each Holder of Outstanding Capital
Securities (1) to maintain directly or indirectly 100% ownership of the Common
Securities of the Issuer Trust; provided, however, that any permitted successor
of the Company under the Indenture may succeed to the Company’s ownership of
such Common Securities; (2) as holder of the Common Securities, not to
voluntarily terminate, wind-up or liquidate the Issuer Trust, except in
connection with a distribution of the Junior Subordinated Debentures to the
Holders of Capital Securities in liquidation of the Issuer Trust or in
connection with certain mergers, consolidations or amalgamations permitted by
the Trust Agreement; and (3) to use its reasonable efforts, consistent with the
terms and provisions of the Trust Agreement, to cause the Issuer Trust to
remain classified as a grantor trust and not as an association taxable as a
corporation for United States Federal income tax purposes.



Section 2.13 Election to Redeem; Notice to Trustee




     The election of the Company to redeem any Junior Subordinated Debentures
shall be authorized by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of any of the Junior Subordinated
Debentures, the Company shall, not less than 30 nor more than 60 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and the Property Trustee of such date and of the
principal amount of Junior Subordinated Debentures to be redeemed and provide
the additional information required to be included in the notice or notices
contemplated by Section 1104 of the Indenture.



Section 2.14 Right of Redemption




     The Company, at its option, may redeem the Junior Subordinated Debentures
(1) in whole at any time or in part at any time and from time to time, other
than during an Extension Period (unless the redemption would apply to all
remaining Junior Subordinated Debentures), or (2) in whole (but not in part) at
any time within 90 days following the occurrence of a Tax Event or Investment
Company Event, in each case (1) and (2) at a Redemption Price equal to the
greater of (A) 100% of the principal amount of the Junior Subordinated
Debentures being redeemed, and (B) the amount, if any, as determined by the
Quotation Agent, equal to the sum of the present values of scheduled payments
of principal and interest from the Redemption Date to February 15, 2034 on the
Junior Subordinated Debentures being redeemed, discounted to the Redemption
Date on a semi-annual basis at a discount rate equal to the Treasury Rate plus
a spread of 0.50%, in the case of a redemption pursuant to Clause (2) above, or
plus a spread of 0.20%, in the case of a redemption pursuant to Clause (1)
above (the amount, if any, by which the amount determined in accordance with
this Clause (B) exceeds the amount determined in accordance with Clause (A)
above shall be the “Premium”), plus, in either case (A) or (B), accrued and
unpaid interest on the Junior Subordinated Debentures being redeemed



-17-









 




to the Redemption Date (it being understood that any such accrued and
unpaid interest is not part of the Redemption Price).




     All determinations contemplated herein to be made by the Quotation Agent
with regard to the Redemption Price may be made by the Quotation Agent in its
good faith discretion, and any such determinations made by the Quotation Agent
shall, absent manifest error, be final and binding on all concerned.



ARTICLE THREE




MISCELLANEOUS PROVISIONS




Section 3.1 Separability of Invalid Provisions




     In case any one or more of the provisions of this Supplemental Indenture
should be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions contained
in this Supplemental Indenture, and to the extent and only to the extent that
any such provision is invalid, illegal or unenforceable, this Supplemental
Indenture shall be construed as if such provision had never been contained
herein.



Section 3.2 Execution in Counterparts




     This Supplemental Indenture may be simultaneously executed and delivered
in any number of counterparts, each of which when so executed and delivered
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.



Section 3.3 Benefits of Indenture for Holders of Capital Securities




     Notwithstanding Section 111 of the Indenture, the Holders of Capital
Securities shall have such rights and benefits, but only such rights and
benefits, under the Indenture and the Junior Subordinated Debentures as are
specified in Sections 2.5, 2.6, 2.7, 2.8, 2.9 and 2.10. Such rights and
benefits shall terminate with respect to each Capital Security and Holder
thereof when such Capital Security is no longer Outstanding or when a Like
Amount of Junior Subordinated Debentures have been exchanged (or duly made
available for exchange) for such Capital Security pursuant to the Trust
Agreement. Without limiting the effect of Section 6.1 of the Trust Agreement,
nothing herein or in the Junior Subordinated Debentures shall impair the rights
and benefits afforded to the Holders of the Junior Subordinated Debentures
under the Indenture and such Securities, even if such rights and benefits
overlap, conflict with or otherwise differ from those afforded to the Holders
of Capital Securities hereunder. Subject to the foregoing, Section 111 of the
Indenture shall remain in full force and effect with respect to the Junior
Subordinated Debentures and the Indenture as it applies to the Junior
Subordinated Debentures.



-18-









 





Section 3.4 Governing Law




     This Supplemental Indenture shall be governed by and construed in
accordance with the law of the State of New York.



-19-









 





     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.



	 	 	 	 	 
	 	 	THE GOLDMAN SACHS GROUP, INC.
	 
	 	 	 	 
	

	 	By
	 	/s/ Veronica Foo
	

	 	 	 	

	 
	 	 	 	 
	Attest: /s/ Matthew E. Tropp
	 	 	 	 
	 
	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Trustee
	 
	 	 	 	 
	

	 	By
	 	/s/ Thomas E. Tabor
	

	 	 	 	

	 
	 	 	 	 
	Attest: /s/ Vanessa Mack
	 	 	 	 







 









 






	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	

	 	 	)	 	ss.:	 
	COUNTY OF NEW YORK

	 	 	)	 	 	 








	 	 	On the 20th day of February      , 2004, before me personally came
Veronica Foo, to me known, who, being by me duly
sworn, did depose and say that he is Assistant Treasurer
of The Goldman Sachs Group, Inc., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.





	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	 	 	/s/ Christine S. Thomas
	 
	 	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 	 	 
	

	 	 	)	 	ss.:	 	 	 
	COUNTY OF NEW YORK

	 	 	)	 	 	 	 	 








	 	 	On the 20th day of February      , 2004, before me personally came
Thomas E. Tabor, to me known, who, being by me duly sworn, did
depose and say that he is a Vice President
of The Bank of New York, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	/s/ Marion Papadogonas








 









 






EXHIBIT A




FORM OF JUNIOR SUBORDINATED DEBENTURE




	 	 	 
	Registered No. [  ]

	 	CUSIP No. [  ]







(FACE OF SECURITY)




     [IF APPLICABLE, INSERT: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.]



     [IF APPLICABLE, INSERT: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO THE GOLDMAN SACHS GROUP, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]



THE GOLDMAN SACHS GROUP, INC.




6.345% Junior Subordinated Debentures Due February 15, 2034




     The Goldman Sachs Group, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the “Company”, which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to [           ], or its
registered assigns, the principal sum of [           ] Dollars on February
15, 2034, and to pay interest thereon from February 20, 2004 or from the most
recent Interest Payment Date to which interest has been paid or duly provided



A-1









 




for, semi-annually on February 15 and August 15 in each year, commencing
August 15, 2004, and at the Maturity thereof, at the rate of 6.345% per annum,
until the principal hereof is paid or made available for payment, provided that
any such regular installment of interest which is overdue shall bear interest
at the rate of 6.345% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand, subject to the deferral and other provisions below and in
the Indenture. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business (or 5:00 P.M., New York City
time, if the Regular Record Date is not a Business Day) on the Regular Record
Date for such interest, which shall be the February 1 or August 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date (or, if the Junior Subordinated Debentures are then represented by a
Global Security, the close of business on the Business Day next preceding such
Interest Payment Date). Any such 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 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 Holders of Securities of this series 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 said Indenture.




     So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of this Security, and from
time to time, to defer the payment of interest on this Security (including any
interest on overdue installments of interest) for a period of up to 10
consecutive semi-annual interest periods (each, an “Extension Period”) during
which Extension Period the Company shall have the right to make no or partial
payments of interest on any Interest Payment Date. No Extension Period shall
end on a date other than an Interest Payment Date. At the end of any such
Extension Period the Company shall pay all interest then accrued and unpaid on
this Security; provided, however, that no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security; provided, further, that
during any such Extension Period, the Company shall comply with certain
covenants contained in the Indenture, as applicable. Prior to the termination
of any such Extension Period, the Company may further extend the interest
payment period, provided that no Extension Period shall extend beyond 10
consecutive semi-annual interest periods or beyond the Stated Maturity of the
principal of this Security. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest then due, the Company may elect
to begin a new Extension Period, subject to the above conditions.



A-2









 





     No interest shall be due and payable during an Extension Period, except at
the end thereof, and non-payment of interest during an Extension Period shall
not result in any default under the Indenture (and any default in the payment
of interest that has accrued but has not become an Event of Default prior to
such Extension Period shall be deemed cured until such period ends). Upon
commencement of such Extension Period, all interest (including any interest
that becomes due and payable prior to the period or would otherwise become due
and payable during the period) shall be deferred and shall not become, or shall
cease to be, as applicable, due and payable until the end of such Extension
Period for all purposes of the Indenture, as more fully provided in the
Indenture. During an Extension Period, (1) Additional Interest shall accrue at
the rate per annum described above on regular installments of interest that
would otherwise first become due and payable on an Interest Payment Date during
such period (but shall not accrue on any other amount, including Additional
Interest or Other Interest), from such Interest Payment Date to the day on
which such period ends, and (2) Other Interest shall continue to accrue at the
rate per annum described above on any regular installment of interest that has
first become due and payable on an Interest Payment Date prior to such period
(or when a prior Extension Period ends) but has not been duly paid or provided
for (but shall not accrue on any other amount, including any Additional
Interest or Other Interest), and shall become due and payable on demand at any
time after such period ends, in each case (1) and (2), subject to any further
deferral and as more fully described in the Indenture and only to the extent
that payment of such interest is legally enforceable and is not duplicative.



     Payment of the principal of (and premium, if any) and any such interest on
this Security will be made at the office or agency of the Company maintained
for that purpose in New York, New York, 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, against surrender of this Security in the case of any
payment due at the Maturity of the principal thereof (other than any payment of
interest that first becomes payable on a day other than an Interest Payment
Date); provided, however, that at the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; and provided,
further, that if this Security is a Global Security, payment may be made
pursuant to the Applicable Procedures of the Depositary as permitted in said
Indenture.



     Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.



     Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.



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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.



Dated:




The Goldman Sachs Group, Inc.




	 	 	 
	By:
	 	 
	

	 	

	

	 	Name:
	

	 	Title:







     This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.



Dated:




The Bank of New York, as Trustee




	 	 	 
	By:
	 	 
	

	 	

	

	 	Authorized Signatory







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(REVERSE OF SECURITY)




     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 a Subordinated Debt Indenture, dated as of February 20, 2004,
as amended and supplemented by a Supplemental Indenture, dated as of February
20, 2004 (herein called the “Indenture”, which term shall have the meaning
assigned to it in such first-specified instrument and shall include each
supplemental indenture), 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 Senior Debt,
the Holders of the Securities and the holders of Capital Securities and of the
terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $2,835,052,000.



     The Company, at its option, may redeem this Security (1) in whole at any
time or in part at any time and from time to time, other than during an
Extension Period (unless the redemption would apply to all remaining Securities
of this Series), or (2) in whole (but not in part) at any time within 90 days
following the occurrence of a Tax Event or Investment Company Event, in each
case at a Redemption Price equal to the greater of (A) 100% of the principal
amount of this Security (or portion hereof) being redeemed, and (B) the amount,
if any, as determined by the Quotation Agent, equal to the sum of the present
values of scheduled payments of principal and interest from the Redemption Date
to February 15, 2034 on this Security (or portion hereof) being redeemed,
discounted to the Redemption Date on a semi-annual basis at a discount rate
equal to the Treasury Rate plus a spread of 0.50%, in the case of a redemption
pursuant to Clause (2) above, or plus a spread of 0.20%, in the case of a
redemption pursuant to Clause (1) above, plus, in either case (A) or (B),
accrued and unpaid interest on this Security (or portion hereof) being redeemed
to the Redemption Date.



     In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.



     The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (i) agrees to and shall be bound by such
provisions, (ii) authorizes and directs the Trustee on his or her behalf to
take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (iii) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, waives all



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notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Debt, whether now outstanding or
hereafter created, incurred, assumed or guaranteed, and waives reliance by each
such holder upon said provisions.




     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.



     The Indenture permits, with certain exceptions as therein provided and
subject to the rights of the holders of Capital Securities referenced below,
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). Subject to such rights of the holders
of Capital Securities, 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.



     The Indenture provides that the holders of the 6.345% capital securities
issued by Goldman Sachs Capital I, a Delaware statutory business trust, and
guaranteed to the extent provided therein by the Company (the “Capital
Securities”) have certain rights under the Indenture and the Securities of this
series. Among other things, the holders of the Capital Securities shall have
the right (1) upon an Event of Default in the payment of principal or interest
in respect of the Securities of this series, to institute suit directly against
the Company for enforcement of such payment to such holders of Capital
Securities, (2) upon an Event of Default with respect to the Securities of this
series, to declare the principal of the Securities of this series due and
payable if the Trustee and the Holders of the Securities of this series do not
do so and (3) to waive certain past defaults with respect to the Securities of
this series, and no modification of the Indenture that would adversely affect
the interests of the holders of the Capital Securities in any material respect
may be approved by the Holders of the Securities of this or any other



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series without the consent of the holders of at least a majority in
liquidation amount of the outstanding Capital Securities, all as more fully
provided in the Indenture.




     As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture, or for the appointment of a receiver or trustee, or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee indemnity reasonably
satisfactory to it, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed
to institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein.



     No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.



     As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
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.



     The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. 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.



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     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.



     [If applicable, insert: 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.]



     This Security and the Indenture shall be governed by and construed in
accordance with the laws of the State of New York.



     All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.




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