EX-4.69



 





     Exhibit 4.69



 

 






GS FINANCE CORP.



Issuer




and




THE GOLDMAN SACHS GROUP, INC.



Guarantor




to




THE BANK OF NEW YORK



Trustee




 

SENIOR DEBT INDENTURE 






Dated
as of December 4, 2007




 

 






 









 











GS FINANCE CORP.




Certain Sections of this Indenture relating to

Sections 310 through 318, inclusive, of the

Trust Indenture Act of 1939:




	 	 	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	Section 310

	 	(a)(1)
	 	609 
	 

	 	(a)(2)
	 	609 
	 

	 	(a)(3)
	 	Not Applicable
	 

	 	(a)(4)
	 	Not Applicable
	 

	 	(b)
	 	608 
	 

	 	 	 	610 
	Section 311

	 	(a)
	 	613 
	 

	 	(b)
	 	613 
	Section 312

	 	(a)
	 	701 
	 

	 	 	 	702 
	 

	 	(b)
	 	702 
	 

	 	(c)
	 	702 
	Section 313

	 	(a)
	 	703 
	 

	 	(b)
	 	703 
	 

	 	(c)
	 	703 
	 

	 	(d)
	 	703 
	Section 314

	 	(a)
	 	704 
	 

	 	(a)(4)
	 	1004 
	 

	 	(b)
	 	Not Applicable
	 

	 	(c)(1)
	 	102 
	 

	 	(c)(2)
	 	102 
	 

	 	(c)(3)
	 	Not Applicable
	 

	 	(d)
	 	Not Applicable
	 

	 	(e)
	 	102 
	Section 315

	 	(a)
	 	601 
	 

	 	(b)
	 	602 
	 

	 	(c)
	 	601 
	 

	 	(d)
	 	601 
	 

	 	(e)
	 	514 
	Section 316

	 	(a)
	 	512 
	 

	 	 	 	513 
	 

	 	(a)(1)(A)
	 	502 
	 

	 	 	 	512 
	 

	 	(a)(1)(B)
	 	513 
	 

	 	(a)(2)
	 	Not Applicable
	 

	 	(b)
	 	508 
	 

	 	(c)
	 	104 
	Section 317

	 	(a)(1)
	 	503 
	 

	 	(a)(2)
	 	504 






i 









 





	 	 	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	 

	 	(b)
	 	1003 
	Section 318

	 	(a)
	 	107 








 




			
	     Note:	 	This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.




ii 









 









TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I Definitions and Other Provisions of General Application

	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 101.

	 	Definitions.
	 	 	1	 
	SECTION 102.

	 	Compliance Certificates and Opinions.
	 	 	9	 
	SECTION 103.

	 	Form of Documents Delivered to Trustee.
	 	 	10	 
	SECTION 104.

	 	Acts of Holders; Record Dates.
	 	 	11	 
	SECTION 105.

	 	Notices, Etc., to Trustee, the Company or the Guarantor.
	 	 	13	 
	SECTION 106.

	 	Notice to Holders; Waiver.
	 	 	13	 
	SECTION 107.

	 	Conflict with Trust Indenture Act.
	 	 	14	 
	SECTION 108.

	 	Effect of Headings and Table of Contents.
	 	 	14	 
	SECTION 109.

	 	Successors and Assigns.
	 	 	14	 
	SECTION 110.

	 	Separability Clause.
	 	 	14	 
	SECTION 111.

	 	Benefits of Indenture.
	 	 	14	 
	SECTION 112.

	 	Governing Law.
	 	 	14	 
	SECTION 113.

	 	Legal Holidays.
	 	 	15	 
	SECTION 114.

	 	Waiver of Jury Trial.
	 	 	15	 
	 
	 	 	 	 	 	 
	ARTICLE II Security Forms
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 201.

	 	Forms Generally.
	 	 	15	 
	SECTION 202.

	 	Form of Face of Security.
	 	 	16	 
	SECTION 203.

	 	Form of Reverse of Security.
	 	 	18	 
	SECTION 204.

	 	Form of Legend for Global Securities.
	 	 	21	 
	SECTION 205.

	 	Form of Guarantee.
	 	 	21	 
	SECTION 206.

	 	Form of Trustee’s Certificate of Authentication.
	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE III The Securities
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 301.

	 	Amount Unlimited; Issuable in Series and Tranches Thereunder.
	 	 	24	 
	SECTION 302.

	 	Denominations.
	 	 	28	 
	SECTION 303.

	 	Execution, Authentication, Delivery and Dating.
	 	 	28	 
	SECTION 304.

	 	Temporary Securities.
	 	 	30	 
	SECTION 305.

	 	Registration, Registration of Transfer and Exchange.
	 	 	30	 
	SECTION 306.

	 	Mutilated, Destroyed, Lost and Stolen Securities.
	 	 	33	 
	SECTION 307.

	 	Payment of Interest; Interest Rights Preserved.
	 	 	33	 
	SECTION 308.

	 	Persons Deemed Owners.
	 	 	35	 
	SECTION 309.

	 	Cancellation.
	 	 	35	 
	SECTION 310.

	 	Computation of Interest.
	 	 	36	 






iii 









 





	 	 	 	 	 	 	 
	SECTION 311.

	 	CUSIP Numbers.
	 	 	36	 
	 
	 	 	 	 	 	 
	ARTICLE IV Satisfaction and Discharge
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 401.

	 	Satisfaction and Discharge of Indenture.
	 	 	36	 
	SECTION 402.

	 	Application of Trust Money.
	 	 	37	 
	ARTICLE V Remedies
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 501.

	 	Events of Default.
	 	 	38	 
	SECTION 502.

	 	Acceleration of Maturity; Rescission and Annulment.
	 	 	40	 
	SECTION 503.

	 	Collection of Indebtedness and Suits for Enforcement by Trustee.
	 	 	41	 
	SECTION 504.

	 	Trustee May File Proofs of Claim.
	 	 	42	 
	SECTION 505.

	 	Trustee May Enforce Claims Without Possession of Securities.
	 	 	42	 
	SECTION 506.

	 	Application of Money Collected.
	 	 	42	 
	SECTION 507.

	 	Limitation on Suits.
	 	 	43	 
	SECTION 508.

	 	Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert.
	 	 	44	 
	SECTION 509.

	 	Restoration of Rights and Remedies.
	 	 	44	 
	SECTION 510.

	 	Rights and Remedies Cumulative.
	 	 	44	 
	SECTION 511.

	 	Delay or Omission Not Waiver.
	 	 	44	 
	SECTION 512.

	 	Control by Holders.
	 	 	44	 
	SECTION 513.

	 	Waiver of Past Defaults.
	 	 	45	 
	SECTION 514.

	 	Undertaking for Costs.
	 	 	45	 
	SECTION 515.

	 	Waiver of Usury, Stay or Extension Laws.
	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE VI The Trustee
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 601.

	 	Certain Duties and Responsibilities.
	 	 	46	 
	SECTION 602.

	 	Notice of Defaults.
	 	 	46	 
	SECTION 603.

	 	Certain Rights of Trustee.
	 	 	46	 
	SECTION 604.

	 	Not Responsible for Recitals or Issuance of Securities.
	 	 	48	 
	SECTION 605.

	 	May Hold Securities.
	 	 	48	 
	SECTION 606.

	 	Money Held in Trust.
	 	 	48	 
	SECTION 607.

	 	Compensation and Reimbursement.
	 	 	48	 
	SECTION 608.

	 	Conflicting Interests.
	 	 	49	 
	SECTION 609.

	 	Corporate Trustee Required; Eligibility.
	 	 	49	 
	SECTION 610.

	 	Resignation and Removal; Appointment of Successor.
	 	 	50	 
	SECTION 611.

	 	Acceptance of Appointment by Successor.
	 	 	51	 
	SECTION 612.

	 	Merger, Conversion, Consolidation or Succession to Business.
	 	 	53	 






iv 









 





	 	 	 	 	 	 	 
	SECTION 613.

	 	Preferential Collection of Claims Against Company.
	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE VII Holders’ Lists and Reports by Trustee, Company and the Guarantor
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 701.

	 	Company and Guarantor to Furnish Trustee Names and Addresses of Holders.
	 	 	53	 
	SECTION 702.

	 	Preservation of Information; Communications to Holders.
	 	 	54	 
	SECTION 703.

	 	Reports by Trustee.
	 	 	54	 
	SECTION 704.

	 	Reports by Company and the Guarantor.
	 	 	54	 
	 
	ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 801.

	 	Company or Guarantor May Consolidate, Etc., Only on Certain Terms.
	 	 	55	 
	SECTION 802.

	 	Successor Substituted.
	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE IX Supplemental Indentures
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 901.

	 	Supplemental Indentures Without Consent of Holders.
	 	 	56	 
	SECTION 902.

	 	Supplemental Indentures With Consent of Holders.
	 	 	58	 
	SECTION 903.

	 	Execution of Supplemental Indentures.
	 	 	59	 
	SECTION 904.

	 	Effect of Supplemental Indentures.
	 	 	59	 
	SECTION 905.

	 	Conformity with Trust Indenture Act.
	 	 	59	 
	SECTION 906.

	 	Reference in Securities to Supplemental Indentures.
	 	 	59	 
	 
	 	 	 	 	 	 
	ARTICLE X Covenants
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1001.

	 	Payment of Principal, Premium and Interest.
	 	 	60	 
	SECTION 1002.

	 	Maintenance of Office or Agency.
	 	 	60	 
	SECTION 1003.

	 	Money for Securities Payments to Be Held in Trust.
	 	 	61	 
	SECTION 1004.

	 	Statement by Officers as to Default.
	 	 	62	 
	SECTION 1005.

	 	Restriction on Certain Liens.
	 	 	62	 
	SECTION 1006.

	 	Waiver of Certain Covenants.
	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE XI Redemption of Securities
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1101.

	 	Applicability of Article.
	 	 	63	 
	SECTION 1102.

	 	Election to Redeem; Notice to Trustee.
	 	 	63	 






v 









 





	 	 	 	 	 	 	 
	SECTION 1103.

	 	Selection by Trustee of Securities to Be Redeemed.
	 	 	63	 
	SECTION 1104.

	 	Notice of Redemption.
	 	 	64	 
	SECTION 1105.

	 	Deposit of Redemption Price.
	 	 	65	 
	SECTION 1106.

	 	Securities Payable on Redemption Date.
	 	 	65	 
	SECTION 1107.

	 	Securities Redeemed in Part.
	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE XII Sinking Funds
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1201.

	 	Applicability of Article.
	 	 	66	 
	SECTION 1202.

	 	Satisfaction of Sinking Fund Payments with Securities.
	 	 	67	 
	SECTION 1203.

	 	Redemption of Securities for Sinking Fund.
	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE XIII Defeasance and Covenant Defeasance
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1301.

	 	Company’s or Guarantor’s Option to Effect Defeasance or Covenant Defeasance.
	 	 	67	 
	SECTION 1302.

	 	Defeasance and Discharge.
	 	 	68	 
	SECTION 1303.

	 	Covenant Defeasance.
	 	 	68	 
	SECTION 1304.

	 	Conditions to Defeasance or Covenant Defeasance.
	 	 	69	 
	SECTION 1305.

	 	Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
	 	 	71	 
	SECTION 1306.

	 	Reinstatement.
	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE XIV Guarantee
	 	 	 	 
	 
	 	 	 	 	 	 
	SECTION 1401.

	 	Guarantee.
	 	 	72	 








 




			
	     Note:	 	This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.





vi 









 





     SENIOR
DEBT INDENTURE, dated as of December 4, 2007, among GS Finance Corp., a
corporation duly organized and existing under the laws of the State of Delaware (herein called the
“Company”) , having its principal office at 85 Broad Street, New York, New York 10004, The
Goldman Sachs Group, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the “Guarantor”), 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 (herein called the “Trustee”).



Recitals of the Company




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be
issued in one or more series or tranches
of series as in this Indenture provided.



     All acts and things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.



Recitals of the Guarantor




     The Guarantor has duly authorized the execution and delivery of this Indenture to provide for
the guarantee to be endorsed on the Securities from time to time as in this Indenture provided.



     All acts and things necessary to make this Indenture a valid agreement of
the Guarantor, in accordance with its terms, have been done.



Now, Therefore, This Indenture Witnesseth:




     For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities, of series thereof or of tranches of one or more series thereof, as follows:



ARTICLE I




Definitions and Other Provisions

of General Application




     SECTION 101. Definitions.




     For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:



 









 






     (1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;




     (2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles;




     (4) unless the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this Indenture;




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




     (6) when used with respect to any Security, the words “convert”, “converted” and
“conversion” are intended to refer to the right of the Holder or the Company to convert or
exchange such Security into or for securities or other property in accordance with such
terms, if any, as may hereafter be specified for such Security as contemplated by Section
301, and these words are not intended to refer to any right of the Holder or the Company to
exchange such Security for other Securities of the same tranche and
like tenor pursuant to Section 304,
305, 306, 906 or 1107 or another similar provision of this Indenture, unless the context
otherwise requires; and references herein to the terms of any Security that may be
converted mean such terms as may be specified for such Security as contemplated in Section
301.




     “Act”, when used with respect to any Holder, has the meaning specified in Section 104.




     “Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect to any
specified Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.




     “Applicable Procedures” of a Depositary means, with respect to any matter at any time,
the policies and procedures of such Depositary, if any, that are applicable to such matter
at such time.



2









 






     “Board of Directors” means either the board of directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee of that board.




     “Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, to have been duly
adopted by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.




     “Business Day”, when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
that Place of Payment are authorized or obligated by law or executive order to close;
provided that, when used with respect to any Security, “Business Day” may have such other
meaning, if any, as may be specified for such Security as contemplated by Section 301.




     “Commission” means the Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such time.




     “Company” means the Person named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Company” shall mean such successor Person.




     “Company Request” or “Company Order” means a written request or order signed in the
name of the Company by any two of the following: a Chairman of the Board, a Vice Chairman
of the Board, a President, a Vice President, a Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary of the Company, or any other officer or officers of the
Company designated in writing by or pursuant to authority of the Board of Directors and
delivered to the Trustee from time to time.




     “Corporate Trust Office” means the principal office of the Trustee in New York, New
York at which at any particular time its corporate trust business shall be administered,
which at the date hereof is located at 101 Barclay Street, Floor 21 West, New York, New
York 10286, Attention: Corporate Trust Administration, or such other address as the
Trustee may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address as such
successor Trustee may designate from time to time by notice to the Holders and the
Company).



3









 






     “corporation” means a corporation, association, company (including a limited liability
company), joint-stock company, business trust or other similar entity.




     “Covenant Defeasance” has the meaning specified in Section 1303.




     “Defaulted Interest” has the meaning specified in Section 307.




     “Defeasance” has the meaning specified in Section 1302.




     “Depositary”
means, with respect to Securities of any tranche issuable in whole or in
part in the form of one or more Global Securities, a clearing agency that is designated to
act as Depositary for such Securities as contemplated by Section 301.




     “Event of Default” has the meaning specified in Section 501.




     “Exchange Act” means the Securities Exchange Act of 1934 and any statute successor
thereto, in each case as amended from time to time.




     “Expiration Date” has the meaning specified in Section 104.




     “Global
Security” means a Security that evidences all or part of the Securities of any series or tranche and bears the legend set forth in Section 204 (or such legend as may be specified
as contemplated by Section 301 for such Securities).




     “GS&Co.” means Goldman, Sachs & Co., a New York partnership, or any other Person that
is a Subsidiary and becomes the successor to GS&Co. as a result of a merger, consolidation
or sale of all or substantially all the assets of GS&Co., but only for as long as such
other Person continues to be a Subsidiary and such successor.




     “Guarantee” means any guarantee of the Guarantor endorsed on a Security authenticated
and delivered pursuant to this Indenture and shall include the guarantee set forth in
Section 1401.




     “Guarantor” means the Person named as the “Guarantor” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.




     “Guarantor Order” or “Guarantor Request” means a written order or request signed in
the name of the Guarantor by any two of the following: a Chairman of the Board, a Vice
Chairman of the Board, a President, a Vice President, a Treasurer, an Assistant Treasurer,
its Secretary or an Assistant



4









 






Secretary of the Guarantor, or any other officer or officers
of the Guarantor designated in writing by or pursuant to authority of the Board of Directors and
delivered to the Trustee from time to time.




     “Holder” means a Person in whose name a Security is registered in the Security
Register.




     “Indenture” means this instrument as originally executed and as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of particular
series or tranche of Securities established as contemplated by Section 301.




     “interest”, when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.




     “Interest Payment Date”, when used with respect to any Security, means the Stated
Maturity of an instalment of interest on such Security.




     “Investment Company Act” means the Investment Company Act of 1940 and any statute
successor thereto, in each case as amended from time to time.




     “Maturity”, when used with respect to any Security, means the date on which the
principal of such Security or an instalment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.




     “Notice of Default” means a written notice of the kind specified in Section 501(4).




     “Officers’ Certificate” means a certificate signed by any two of the following: a
Chairman of the Board, a Vice Chairman of the Board, a President, a Vice President, a
Treasurer, an Assistant Treasurer, a Secretary or an Assistant Secretary of the Company, or
any other officer or officers of the Company designated in a writing by or pursuant to
authority of the Board of Directors of the Company or the Guarantor, as the case may be,
and delivered to the Trustee from time to time. One of the officers signing an Officers’
Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company. An Officers’ Certificate of the Company may be combined
with an Officers’ Certificate of the Guarantor if signed by any two of the above officers
of the Company and the Guarantor.



5









 






     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the
Company or for the Guarantor or for both, as the case may be, and who
shall be acceptable to the Trustee.




     “Original Issue Discount Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.




     “Outstanding”, when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this Indenture,
except:




     (1) Securities theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;




     (2) Securities for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;




     (3) Securities as to which Defeasance has been effected pursuant to Section
1302;




     (4) Securities which have been paid pursuant to Section 306 or in exchange for
or in lieu of which other Securities have been authenticated and delivered pursuant
to this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company or the Guarantor or both; and




     (5) Securities as to which any property deliverable upon conversion thereof
has been delivered (or such delivery has been made available), or as to which any
other particular conditions have been satisfied, in each case as may be provided
for such Securities as contemplated in Section 301;




provided, however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date,
(A) the principal amount of an Original Issue Discount Security which shall be deemed to be
Outstanding shall be the amount of the



6









 






principal thereof which would be due and payable as
of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of
such date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section 301, (C) the
principal amount of a Security denominated in one or more foreign currencies, composite
currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in such Clause),
and (D) Securities owned by the Company, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect
to such Securities and that the pledgee is not the Company, the Guarantor or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor.




     “Paying
Agent”, when used with respect to any Securities, means any
Person authorized by the Company to pay the principal of or any
premium or interest on such
Securities on behalf of the Company or the Guarantor.




     “Permitted Lien” means each such pledge, lien and other encumbrance as the Board of
Directors of the Guarantor determines does not materially detract from or interfere with the value or
control, as of the date of such determination, of the
Guarantor’s or any of Subsidiaries' voting or profit participating equity ownership interests in
GS&Co. (or in any Subsidiary of the Guarantor that beneficially owns or holds any such interests in GS&Co.,
directly or indirectly).




     “Person” means any individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision thereof.




     “Place
of Payment”, when used with respect to any Securities and
subject to Section 1002, means the place or places where the principal of and any premium
and interest on such Securities are payable as specified as contemplated by
Section 301.




     “Predecessor Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such



7









 






particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.




     “Redemption Date”, when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.




     “Redemption Price”, when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.




     “Regular Record Date” for the interest payable on any Interest Payment Date on the
Securities of any tranche means the date specified for that purpose as contemplated by
Section 301.




     “Responsible Officer”, when used with respect to the Trustee, means any vice
president, any assistant secretary, any assistant treasurer, any trust officer, any
assistant trust officer or any other officer of the Trustee, in each case, within the
corporate trust department of the Trustee who customarily performs functions similar to
those performed by the Persons who at the time shall be such officers, respectively, and
also means, with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this Indenture.




     “Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.




     “Securities Act” means the Securities Act of 1933 and any statute successor thereto,
in each case as amended from time to time.




     “Security Register” and “Security Registrar” have the respective meanings specified in
Section 305.




     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 307.




     “Stated Maturity”, when used with respect to any Security or any instalment of
principal thereof or interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such instalment of principal or
interest is due and payable.




8









 






     “Subsidiary”
of the Company or the Guarantor means any Person a majority of the combined voting power of the total
outstanding ownership interests in which is, at the time of




determination, beneficially owned or held, directly or indirectly, by the Company or
the Guarantor, as the case may be, or one or more other Subsidiaries
of the Company or the Guarantor, as the case may be. For
this purpose, “voting power” means power to vote in an ordinary election of directors (or,
in the case of a Person that is not a corporation, ordinarily to appoint or approve the
appointment of Persons holding similar positions), whether at all times or only as long as
no senior class of ownership interests has such voting power by reason of any contingency.




     “tranche”
means, in relation to any series of Securities, any Securities of
such series that are established (or deemed established) as provided in
Section 301 as a tranche. A tranche may comprise all or any
part of the Securities of a series.




     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as
of which this instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.




     “Trustee” means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such Person,
“Trustee” as used with respect to the Securities of any series or tranche shall mean the
Trustee with respect to Securities of that series or tranche.




     “U.S. Government Obligation” has the meaning specified in Section 1304.




     “Vice President”, when used with respect to the Company, the Guarantor or the Trustee,
means any vice president, whether or not designated by a number or a word or words added
before or after the title “vice president”.



     SECTION 102. Compliance Certificates and Opinions.




     Upon any application or request by the Company or the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or the Guarantor, or both, as the case
may be, shall furnish to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act; provided, however, that no such opinion shall be required in connection with
the issuance of Securities that are part of any series or tranche as
to which such an opinion has been furnished. Each such certificate or opinion shall be given in the
form of an Officers’ Certificate, if to be given by an officer of the Company or the Guarantor, or
both, or an Opinion of Counsel, if to be given by



9









 





counsel, and shall comply with the requirements
of the Trust Indenture Act and any other requirements set forth in this Indenture.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include,



     (1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and




     (4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



     SECTION 103. Form of Documents Delivered to Trustee.




     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company or the Guarantor, or both, as the case
may be, may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or
representation by, counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the Company or the
Guarantor, or both, as the case may be, stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, as the
case may be, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.




10









 





     SECTION 104. Acts of Holders; Record Dates.




     Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company
and the Guarantor. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee, the Company and the Guarantor, if made in the manner provided in this
Section.




     The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.



     The ownership of Securities shall be proved by the Security Register.



     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or
the Guarantor in reliance thereon, whether or not notation of such action is made upon such
Security.



     Each of the Company and the Guarantor may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series or tranche entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such
series or tranche, provided that neither the Company nor the Guarantor may set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series or
tranche on such record date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; provided that no such 


11









 




action
shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series or tranche on such
record date. Nothing in this paragraph shall be construed to prevent the Company or the Guarantor
from setting a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities of the relevant series or
tranche on the date such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company or the Guarantor, as the case may be, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series or tranche in the
manner set forth in Section 106.




     The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series or tranche entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any
request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series or tranche. If any record date
is set pursuant to this paragraph, the Holders of Outstanding Securities of such series or tranche
on such record date, and no other Holders, shall be entitled to join in such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date; provided
that no such action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such
series or tranche on such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series or tranche on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company and the Guarantor in writing and to each Holder of
Securities of the relevant series or tranche in the manner set forth in Section 106.



     With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series or tranche in the manner set forth in Section 106,
on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect
to any record date set pursuant to this Section, the party hereto which set such record date shall
be deemed to have



12









 





initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day
after the applicable record date.



     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.



     SECTION 105. Notices, Etc., to Trustee, the Company or the Guarantor.




     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with, (1) the Trustee by any Holder or by the Company or the Guarantor shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing (which may be by
facsimile) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or (2) the Company or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company or the Guarantor addressed to it at the
address of its principal office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company or the Guarantor.



     SECTION 106. Notice to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.



     In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.




13









 






     Where this Indenture provides for Notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depositary for such Security (or its designee),
pursuant to its Applicable Procedures, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice.




     SECTION 107. Conflict with Trust Indenture Act.




     If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.



     SECTION 108. Effect of Headings and Table of Contents.




     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



     SECTION 109. Successors and Assigns.




     All covenants and agreements in this Indenture by the Company and the Guarantor shall bind
their respective successors and assigns, whether so expressed or not.



     SECTION 110. Separability Clause.




     In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     SECTION 111. Benefits of Indenture.




     Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture, except as may otherwise be provided
pursuant to Section 301 with respect to any Securities of a particular tranche or under this
Indenture with respect to such Securities.



     SECTION 112. Governing Law.




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




14









 





     SECTION 113. Legal Holidays.




     In any case where any Interest Payment Date, Redemption Date or Maturity of any Security, or
any date on which a Holder has the right to convert his Security, shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of any Security which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and premium, if any), or
conversion of such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Maturity, or on such date for conversion, as the case may be.




     SECTION
114. Waiver of Jury Trial




     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY



ARTICLE II




Security Forms




     SECTION 201. Forms Generally.




     The Securities of each tranche and the Guarantees to be endorsed thereon as contemplated in
Article Fourteen shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution of the Company or the Guarantor,
as the case may be, or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture, and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities or Guarantees endorsed thereon, as evidenced by their execution
thereof. If the form of Securities of any tranche or Guarantees endorsed thereon is established by
action taken pursuant to a Board Resolution of the Company or the Guarantor, as applicable, a copy
of an appropriate record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company or of the Guarantor, as applicable, and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the authentication and
delivery of such Securities.





15












 





     The
definitive Securities and Guarantees endorsed thereon shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such Securities
or Guarantees, as evidenced by their execution of such Securities.




     SECTION 202. Form of Face of Security.



     [Insert any legend required by the Internal Revenue Code and the regulations thereunder.]




GS Finance Corp.




Title of
Series:                                                            



Title of
Tranche:                                                        




No.                      $                     




GS FINANCE CORP., 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 registered assigns, the
principal sum of                                                              Dollars on                                                              [if the Security is to bear interest prior to
Maturity, insert — ,
and to pay interest thereon from                                          or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on                                          and                                          in each year, commencing                                         , and at the
Maturity thereof, at the rate of                     % per annum, until the principal hereof is paid or made available
for payment [if applicable, insert — , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at the rate of                     % 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]. 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 on the Regular Record Date
for such interest, which shall be the                      or                      (whether or not a Business Day), as the case may
be, 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 tranche 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].



16









 





     [If the Security is not to bear interest prior to Maturity, insert — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of                     % 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. Interest on any
overdue principal or premium shall be payable on demand.]



     Payment of the principal of (and premium, if any) and [if applicable, insert — any such]
interest on this Security will be made at the office or agency 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.



17









 





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



	 	 	 	 	 
	 	 	GS Finance Corp.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






     SECTION 203. Form of 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 (and, with respect to each series, one or more tranches of
such series) under a
Senior Debt Indenture, dated as of December 4, 2007 (herein called the “Indenture”, which term
shall have the meaning assigned to it in such instrument), among the Company, The Goldman Sachs
Group, Inc. (the “Guarantor”) 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 Guarantor, the Trustee and the Holders of the 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 [if applicable,
insert —, limited in aggregate principal amount to $......].
This Security is also one of a tranche of such series, which tranche
is designated on the face hereof [if applicable, insert —,
and is limited in
aggregate principal amount to $                    ].



     [If applicable, insert — The Securities of this tranche are subject to redemption upon not
less than 30 days’ nor more than 60 days’ notice, at any time [if applicable, insert — on or after
                    , 20     ], as a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [if applicable, insert — on
or before                     ,      %, and if redeemed] during the 12-month period beginning                      of the years
indicated,



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Redemption	 	 	 	 	 	Redemption
	Year	 	Price	 	Year	 	Price
	 
	 	 	 	 	 	 	 	 	 	 	 	 




and thereafter at a Redemption Price equal to      % of the principal amount, together in the case of
any such redemption with accrued interest to the Redemption Date, but interest instalments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities,




18









 






of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]



     [If the Security is subject to redemption of any kind, insert — In the event of redemption of
this Security in part only, a new Security or Securities of this tranche for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]



     [If applicable, insert — The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions set forth in the
Indenture.]



     [If the Security is not an Original Issue Discount Security, insert — If an Event of Default
with respect to Securities of this tranche shall occur and be continuing, the principal of the
Securities of this tranche may be declared due and payable in the manner and with the effect
provided in the Indenture.]



     [If the Security is an Original Issue Discount Security, insert — If an Event of Default with
respect to Securities of this tranche shall occur and be continuing, an amount of principal of the
Securities of this tranche may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
tranche shall terminate.]



     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 Guarantor and the rights of
the Holders of the Securities of each tranche to be affected under the Indenture at any time by the
Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal
amount of the Securities at the time Outstanding of all tranches 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 tranches
to be affected under the Indenture (considered together as one class for this purpose), on behalf
of the Holders of all Securities of such tranches, 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 tranche to be affected under the Indenture (with each
such tranche considered separately for this purpose), on behalf of the Holders of all Securities of
such tranche, 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



19









 





hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.


     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 tranche, the Holders of not less than 25% in principal amount of the
Securities of this tranche 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 tranche 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, or alter or impair the obligation of the Guarantor, which
is unconditional to pay pursuant to the Guarantee endorsed hereupon.



     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 tranche, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or transferees.



     The Securities of this tranche 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 tranche are exchangeable for a like
aggregate principal amount of Securities of this tranche and 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.



20










 





     Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.



     This Security is a Global Security and is subject to the provisions of the Indenture relating
to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges
of Global Securities.



     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.



     SECTION 204. Form of Legend for Global Securities.



     Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:



     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.



     SECTION 205. Form of Guarantee.



     Guarantees to be endorsed on the Securities shall be substantially in the form set forth
below:



[Form of Guarantee]




     The Goldman Sachs Group, Inc., a corporation organized under the laws of the State of Delaware
(herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), for value
received, hereby fully and unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed, the due and punctual payment of the principal of, and premium, if any, and
interest, if any, on such Security when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in
accordance with the terms of such



21









 





Security and of the Indenture. In case of the failure of GS
Finance Corp., a corporation organized under the laws of the State of Delaware (herein called the “Company”, which term includes any
successor Person under the Indenture), punctually to make any such payment [if applicable, insert
— (and subject to the Company’s right to defer the Stated Maturity of interest payments as
provided in such Security)], the Guarantor hereby agrees to
cause such payment to be made punctually when and as the same shall become due and payable, whether
at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as
if such payment were made by the Company.



     The Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional
irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of
such Security or the Indenture, any failure to enforce the provisions of such Security or the
Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which may otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Security, or increase the interest
rate thereon, change any redemption provisions thereof (including any change to increase any
premium payable upon redemption thereof) or change the Stated
Maturity of any payment thereon.



     The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or the Holder of such Security exhaust any right or take any action
against the Company or any other Person, filing of claims with a court in the event of insolvency
or bankruptcy of the Company, any right to require a proceeding first against the Company, protest
or notice with respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security
except by complete performance of the obligations contained in such Security and in this Guarantee.
This Guarantee shall constitute a guaranty of payment and not of collection. The Guarantor hereby
agrees that, in the event of a default in payment of principal, or premium, if any, or interest, if
any, on such Security, whether at its Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, subject to the terms and conditions set forth in the Indenture,
directly against the Guarantor to enforce this Guarantee without first proceeding against the
Company.



     The obligations of the Guarantor hereunder with respect to such Security shall be continuing
and irrevocable until the date upon which the entire principal of, premium, if any, and interest,
if any, on such Security has been, or has been deemed pursuant to the provisions of Article Four of
the Indenture to have been, paid in full or otherwise discharged.



     The Guarantor shall be subrogated to all rights of the Holder of such Security upon which this
Guarantee is endorsed against the Company in respect of any amounts



22









 






paid by the Guarantor on
account of such Security pursuant to the provisions of this Guarantee or the Indenture; provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of subrogation until
the principal of, and premium, if any, and interest, if any, on all Securities issued under the
Indenture shall have been paid in full.



     This Guarantee shall remain in full force and effect and continue notwithstanding any petition
filed by or against the Company for liquidation or reorganization, the Company becoming insolvent
or making an assignment for the benefit of creditors or a receiver or trustee being appointed for
all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by
law, continue to be effective or reinstated, as the case may be, if at any time payment of the
Security upon which this Guarantee is endorsed, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by the Holder of such Security,
whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned on such Security, such Security shall, to the fullest
extent permitted by law, be reinstated and deemed paid only by such amount paid and not so
rescinded, reduced, restored or returned.



     This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication of the Security upon which this Guarantee is endorsed shall have been manually
executed by or on behalf of the Trustee under the Indenture.



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



     This Guarantee shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be governed by and construed in accordance with the laws of the State of
New York.



     IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed as of the date
first written above.



	 	 	 	 	 
	 	 	The Goldman Sachs Group, Inc.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 






23









 






     SECTION 206. Form of Trustee’s Certificate of Authentication.



     The Trustee’s certificates of authentication shall be in substantially the following form:



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



Dated:






	 	 	 	 	 
	 	 	The Bank of New York, as Trustee
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory






ARTICLE III




The Securities




     SECTION 301. Amount Unlimited; Issuable in Series and Tranches Thereunder.



     The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.



     The
Securities may be issued in one or more series and each series shall
be issued in one or more tranches (it being understood that any
series for which separate tranches are not established hereunder
shall be deemed for all purposes hereof to be established as a single
tranche as well as a series). There
shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth,
or determined in the manner provided, in an Officers’
Certificate of the Company, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any series, (i) the title of
the Securities of the series (which shall distinguish the Securities of the series from Securities
of any other series), (ii) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder) and (iii) any other terms applicable to the Securities of the series (which
terms shall not be inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5).



     In
addition, there shall be established in or pursuant to a Board Resolution of the Company and, subject to
Section 303, set forth, or determined in the manner provided, in




24









 






an Officers’ Certificate of the
Company, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any tranche,




     (1) the title of the Securities of the tranche (which shall distinguish the Securities
of the tranche from Securities of any other tranche of the same series and of any other
series);




     (2) any limit upon the aggregate principal amount of the Securities of the tranche
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the tranche pursuant to Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);




     (3) the Person to whom any interest on a Security of the tranche shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest;




     (4) the date or dates on which the principal of any Securities of the tranche is
payable;




     (5) the rate or rates at which any Securities of the tranche shall bear interest, if
any, the date or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date for any such
interest payable on any Interest Payment Date;




     (6) the place or places where the principal of and any premium and interest on any
Securities of the tranche shall be payable and the manner in which any payment may be made;




     (7) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the tranche may be redeemed, in whole or in part,
at the option of the Company and, if other than by a Board Resolution, the manner in which
any election by the Company to redeem the Securities shall be evidenced;




     (8) the obligation, if any, of the Company to redeem or purchase any Securities of the
tranche pursuant to any sinking fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the tranche shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;




     (9) if other than denominations of $1,000 and any multiple thereof, the denominations
in which any Securities of the tranche shall be issuable;





25









 






     (10) if the amount of principal of or any premium or interest on any Securities of the
tranche may be determined with reference to an index or pursuant to a formula, the manner
in which such amounts shall be determined;




     (11) if other than the currency of the United States of America, the currency,
currencies, composite currency, composite currencies or currency units in which the
principal of or any premium or interest on any Securities of the tranche shall be payable
and the manner of determining the equivalent thereof in the currency of the United States
of America for any purpose, including for the purposes of making payment in the currency of the United States of America and
applying the definition of “Outstanding” in Section 101;




     (12) if the principal of or any premium or interest on any Securities of the tranche
is to be payable, at the election of the Company or the Holder thereof, in one or more
currencies, composite currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies, composite currency,
composite currencies or currency units in which the principal of or any premium or interest
on such Securities as to which such election is made shall be payable (provided payment in
such currency, currencies, composite currency, composite currencies or currency units is
deemed to be reasonably practicable by the Trustee and the Paying Agent), the periods
within which and the terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be determined);




     (13) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the tranche which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;




     (14) if the principal amount payable at the Stated Maturity of any Securities of the
tranche will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be
determined);




     (15) if applicable, that the Securities of the tranche, in whole or any specified
part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections,
any provisions to permit a pledge of obligations other than U.S. Government Obligations (or
the establishment of other arrangements) to satisfy the requirements of Section 1304(1) for
defeasance of such Securities and, if other than by a Board Resolution, the manner in which
any election by the Company to defease such Securities shall be evidenced;





26









 





     (16) if applicable, that any Securities of the tranche shall be issuable in whole or
in part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set forth in Section
204, any addition to, elimination of or other change in the circumstances set forth in
Clause (2) of the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of such Global
Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof and any other provisions governing exchanges or
transfers of any such Global Security;




     (17) any addition to, elimination of or other change in the Events of Default which
applies to any Securities of the tranche and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 502;




     (18) any addition to, elimination of or other change in the covenants set forth in
Article Ten which applies to Securities of the tranche;




     (19) any provisions necessary to permit or facilitate the issuance, payment or
conversion of any Securities of the tranche that may be converted into securities or other
property other than Securities of the same tranche, whether in addition to, or in lieu of,
any payment of principal or other amount and whether at the option of the Company or
otherwise;




     (20) if applicable, that Persons other than those specified in Section 111 shall have
such benefits, rights, remedies and claims with respect to any Securities of the tranche or
under this Indenture with respect to such Securities, as and to the extent provided for
such Securities; and




     (21) any other terms of the Securities of the tranche (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).



     Without limiting the foregoing, the Company may elect to apply the provisions of Clauses (1)
through (21) above, or any one or more of such Clauses to all Securities of a series, rather than
of a particular tranche, as if the references to “tranche” in the relevant Clause were instead
references to the relevant series. Any such election shall be evidenced in a Board Resolution or
an Officers’ Certificate of the Company.



     There shall be established in or pursuant to a Board Resolution of the Guarantor and, subject
to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate of the
Guarantor, or established in one or more indentures supplemental hereto, prior to the issuance of
Securities of any tranche, the provisions of




27









 






the Guarantees with respect to the Securities of such
tranche, if such provisions differ from those set forth in
Section 1401.



     All Securities of any one tranche shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate of the Company referred to above or in any such indenture supplemental hereto.



     If any of the terms of the series or tranche are established by action taken pursuant to a
Board Resolution of the Company, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers’ Certificate setting forth the terms of the series or tranche.





     SECTION 302. Denominations.



     The Securities of each tranche shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by Section 301. In the absence of
any such specified denomination with respect to the Securities of any tranche, the Securities of
such tranche shall be issuable in denominations of $1,000 and any multiple thereof.



     SECTION 303. Execution, Authentication, Delivery and Dating.



     The Securities shall be executed on behalf of the Company by a Chairman of the Board, a Vice
Chairman of the Board, a President or a Vice President of the Company (or any other officer of the
Company designated in writing by or pursuant to authority of the Board of Directors and delivered
to the Trustee from time to time). The signature of any of these officers on the Securities may be
manual or facsimile. The Guarantees to be endorsed on any
Securities shall be executed and delivered.



     Securities or Guarantees endorsed thereon bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the Guarantor shall bind the
Company or the Guarantor, as the case may be, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of such Securities or
Guarantees endorsed thereon or did not hold such offices at the date
of such Securities. For all purposes hereof, a Guarantee that is
endorsed on, otherwise attached to, or made part of, a Security shall
be deemed “endorsed” on such Security.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any tranche executed by the Company with the Guarantees endorsed
thereon to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and a Guarantor Order approving the terms and
delivery of the Guarantees to be endorsed on such Securities as contemplated by the Company Order,
and the Trustee in accordance with the Company Order shall authenticate and deliver such





28









 





Securities
with the Guarantees endorsed thereon. If the form or terms of the Securities of the tranche or the
Guarantees endorsed thereon have been established by or pursuant to one or more Board Resolutions
of the Company as permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,




     (1) if the form of such Securities or Guarantees endorsed thereon has been established
by or pursuant to Board Resolution of the Company as permitted by Section 201, that such
form has been established in conformity with the provisions of this Indenture;




     (2) if the terms of such Securities or Guarantees endorsed thereon have been
established by or pursuant to Board Resolution of the Company as permitted by Section 301, that such terms have been established in conformity with the
provisions of this Indenture; and




     (3) that such Securities with the Guarantees endorsed thereon, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Guarantor, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.



     If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities with the Guarantees endorsed thereon if the issue of such Securities
with the Guarantees endorsed thereon pursuant to this Indenture will affect the Trustee’s own
rights, duties or immunities under the Securities or the Guarantees endorsed thereon and this
Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.



     Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series or tranche are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate of the Company otherwise required pursuant to Section 301 or the
Company Order, the Guarantor Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each
Security of such series or tranche if such
documents are delivered at or prior to the authentication upon original issuance of the first
Security of such series or tranche to be issued.



     Each Security, and any Guarantee endorsed thereon, shall be dated the date of its
authentication.




29









 






     No Security or the Guarantee endorsed thereon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein executed by the Trustee
by manual signature, and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated
and (together with the Guarantee endorsed thereon) delivered hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.



     SECTION 304. Temporary Securities.



     Pending the preparation of definitive Securities of any tranche, the Company may execute, and
upon Company Order and a Guarantor Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, having the Guarantees endorsed thereon, and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing
such Securities or Guarantees may determine, as evidenced by their execution of such Securities.



     If temporary Securities of any tranche are issued, the Company will cause definitive
Securities of that tranche to be prepared without unreasonable delay. After the preparation of
definitive Securities of such tranche, the temporary Securities of such tranche shall be
exchangeable for definitive Securities of such tranche with the definitive Guarantees of the
Guarantor endorsed thereon upon surrender of the temporary Securities of such tranche at the office
or agency of the Company in a Place of Payment for that tranche, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any tranche, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same tranche, of any authorized denominations and of like aggregate
principal amount with the definitive Guarantees of the Guarantor endorsed thereon. Until so
exchanged, the temporary Securities of any tranche shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such tranche.



     SECTION 305. Registration, Registration of Transfer and Exchange.



     The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities.



30









 





The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.



     Upon surrender for registration of transfer of any Security of a tranche at the office or
agency of the Company in a Place of Payment for that tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same tranche, of any authorized denominations and of like
aggregate principal amount with the Guarantees of the Guarantor endorsed thereon.



     At the option of the Holder, Securities of any tranche may be exchanged for other Securities
of the same tranche, of any authorized denominations and of like aggregate principal amount with
the Guarantees of the Guarantor endorsed thereon, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities with the Guarantees
of the Guarantor endorsed thereon, which the Holder making the exchange is entitled to receive.




     All Securities issued and Guarantees delivered upon any registration of transfer or exchange
of Securities and the Guarantees endorsed thereon shall be the valid obligations of the Company and
the Guarantor, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Securities and the Guarantees surrendered upon such registration of transfer or exchange.



     Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company, the Guarantor or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the Guarantor and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.



     If the Securities of any tranche are to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any Securities of that tranche during a period
beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing (or during such period as otherwise specified as
contemplated by Section 301 for such Securities), or (B) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.




31









 






     The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:




     (1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.




     (2) Notwithstanding any other provision in this Indenture, and subject to such
applicable provisions, if any, as may be specified as contemplated by Section 301, no
Global Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof unless (A)
such Depositary has notified the Company that it (i) is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security or (C) the Company has executed and delivered to the Trustee a Company Order stating that such Global Security shall
be exchanged in whole for Securities (with Guarantees
endorsed thereon) that are not Global Securities (in which case such exchange shall promptly be effected by the
Trustee). If the Company receives a notice of the kind specified in Clause (A) above or has
delivered a Company Order of the kind specified in Clause (C) above, it may, in its sole
discretion, designate a successor Depositary for such Global Security within 60 days after
receiving such notice or delivery of such order, as the case may be. If the Company
designates a successor Depositary as aforesaid, such Global Security shall promptly be
exchanged in whole for one or more other Global Securities registered in the name of the
successor Depositary, whereupon such designated successor shall be the Depositary for such
successor Global Security or Global Securities and the provisions of Clauses (1), (2), (3)
and (4) of this Section shall continue to apply thereto.




     (3) Subject to Clause (2) above and to such applicable provisions, if any, as may be
specified as contemplated by Section 301, any exchange of a Global Security for other
Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion
thereof shall have Guarantees endorsed thereon and be
registered in such names as the Depositary for such Global Security shall direct.




     (4) Every Security with the Guarantee endorsed thereon authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of,




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and shall be, a Global
Security, unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.



     SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same tranche and
of like tenor and principal amount, having a Guarantee of the Guarantor endorsed thereon, and bearing a
number not contemporaneously outstanding.



     If there shall be delivered to the Company, the Guarantor and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii) such security or
indemnity as may be required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same tranche and of like principal amount, having a Guarantee of the Guarantor endorsed
thereon, and bearing a number not contemporaneously outstanding.




     In case any such mutilated, destroyed, lost or stolen Security has been or is about to become
due and payable, the Company or the Guarantor in its absolute discretion may, instead of issuing a
new Security, pay such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security of any tranche issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security and any Guarantee endorsed thereon shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that tranche duly issued
hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     SECTION 307. Payment of Interest; Interest Rights Preserved.



     Except as otherwise provided as contemplated by Section 301 with respect to any Securities of
a tranche, interest on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of




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business on the Regular Record Date for
such interest (or, if no business is conducted by the Trustee at its Corporate Trust Office on such
date, at 5:00 P.M. New York City time on such date).



     Any interest on any Security of any tranche which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company or the Guarantor, at its
election in each case, as provided in Clause (1) or (2) below:




     (1) The Company or the Guarantor may elect to make payment of any Defaulted Interest
payable on any Securities of a tranche to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company or the Guarantor shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each of such Securities and the date of
the proposed payment, and at the same time the Company or the Guarantor, as the case may
be, shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company and the Guarantor of such Special Record Date
and, in the name and at the expense of the Company or the Guarantor, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor to be
given to each Holder of such Securities in the manner set forth in Section 106, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).




     (2) The Company or the Guarantor may make payment of any Defaulted Interest on any
Securities of a tranche in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company or the Guarantor to
the Trustee of the proposed payment




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pursuant to this Clause, such manner of payment shall
be deemed practicable by the Trustee.



     Except as may otherwise be provided in this Section 307 or as contemplated in Section 301 with
respect to any Securities of a tranche, the Person to whom interest shall be payable on any
Security that first becomes payable on a day that is not an Interest Payment Date shall be the
Holder of such Security on the day such interest is paid.



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



     In the case of any Security which is converted after any Regular Record Date and on or prior
to the next succeeding Interest Payment Date (other than any Security whose Maturity is prior to
such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close of business on
such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing,
the terms of any Security that may be converted may provide that the provisions of this paragraph
do not apply, or apply with such additions, changes or omissions as may be provided thereby, to
such Security.



     SECTION 308. Persons Deemed Owners.



     Prior to due presentment of a Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and none
of the Company, the Guarantor, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.



     SECTION 309. Cancellation.



     All Securities surrendered for payment, redemption, registration of transfer or exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly canceled by it. The Company or
the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and may deliver to




35









 





the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order; provided, however, that the Trustee
shall not be required to destroy such canceled Securities.



     SECTION 310. Computation of Interest.



     Except as otherwise specified as contemplated by Section 301 for Securities of any tranche,
interest on the Securities of each tranche shall be computed on the basis of a 360-day year of
twelve 30-day months.



     SECTION 311. CUSIP Numbers.



     The Company in issuing the Securities may use CUSIP numbers (if then generally in use) and, if
so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders,
provided that any such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities. Any such redemption shall not be affected by any
defect in or omission of such numbers.



ARTICLE IV




Satisfaction and Discharge




     SECTION 401. Satisfaction and Discharge of Indenture.



     This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of any Security expressly
provided for herein or in the terms of such Security), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when




     (1) either




     (A)
all Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company or the
Guarantor and thereafter repaid to the Company or the Guarantor, as the
case may be, or





36









 





discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or




     (B) all such Securities not theretofore delivered to the Trustee for
cancellation




     (i) have become due and payable, or




     (ii) will become due and payable at their Stated Maturity within one
year, or




     (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company
and the Guarantor, jointly and severally, and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;




     (2) the Company or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Company or the Guarantor; and




     (3) the Company or, if applicable, the Guarantor has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been
complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive such satisfaction and discharge.



     SECTION 402. Application of Trust Money.



     Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal and any premium and interest for whose payment
such money has been



37









 





deposited with the Trustee. All money deposited with the Trustee pursuant to
Section 401 (and held by it or any Paying Agent) for the payment of Securities subsequently
converted for other property shall be returned to the Company upon Company Request or to the
Guarantor upon Guarantor Request, to the extent originally deposited by such party. The Company or
the Guarantor, as the case may be, may direct by a Company Order or Guarantor Order the investment
of any money deposited with the Trustee pursuant to Section 401, without distinction between
principal and income, in (1) United States Treasury Securities with a maturity of one year or less
or (2) a money market fund that invests solely in short term United States Treasury Securities and
from time to time the Company or the Guarantor, as the case may be, may direct the reinvestment of
all or a portion of such money in other securities or funds meeting the criteria specified in
Clause (1) or (2) of this Section.




ARTICLE V




Remedies




     SECTION 501. Events of Default.



     Except
as may otherwise be specified as contemplated by Section 301 for
Securities of any series or tranche,
“Event of Default”, wherever used herein with respect to Securities of any tranche, means any one
of the following events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Fourteen or be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):




     (1) default in the payment of any interest upon any Security of that tranche when it
becomes due and payable, and continuance of such default for a period of 30 days; or




     (2) default in the payment of the principal of or any premium on any Security of that
tranche at its Maturity; or




     (3) default in the deposit of any sinking fund payment, when and as due by the terms
of a Security of that tranche; or




     (4) default in the performance, or breach, of any covenant or warranty of the Company
or the Guarantor in this Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit
of one or more tranches of
Securities other than that tranche), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the Company and
the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the





38









 






Holders of at least 10% in principal amount of the Outstanding Securities of that tranche a
written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or




     (5) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or the Guarantor in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under any
applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or the Guarantor or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days (provided that, if any Person
becomes the successor to the Company or the Guarantor pursuant to Article Eight and such
Person is a corporation, partnership or trust organized and validly existing under the law
of a jurisdiction outside the United States, each reference in this Clause 5 to an
applicable Federal or State law of a particular kind shall be deemed to refer to such law
or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person
is the successor to the Company or the Guarantor, as the case may be, hereunder and is so
organized and existing); or




     (6) the commencement by the Company or the Guarantor of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by it to the entry of a decree or order for relief in respect of the Company
or the Guarantor in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or the Guarantor or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or the Guarantor in furtherance of any
such action (provided that, if any Person becomes the successor to the Company or the
Guarantor pursuant to Article Eight and such Person is a corporation, partnership or trust
organized and validly existing under the law of a jurisdiction outside the United States,
each reference in this Clause 6 to an applicable Federal or State law of a particular kind



39









 





shall be deemed to refer to such law or any applicable comparable law of such non-U.S.
jurisdiction, for as long as such Person is the successor to the Company or the Guarantor,
as the case may be, hereunder and is so organized and existing); or




     (7) except as provided by the terms hereof, the Securities of such tranche and the
Guarantees endorsed thereon, the cessation of effectiveness of the Guarantee endorsed on a
Security of that tranche or the finding by any judicial proceeding that the Guarantee
endorsed on a Security of that tranche is unenforceable or invalid or the denial or
disaffirmation by the Guarantor of its obligations under the Guarantee endorsed on a
Security of that tranche; or




     (8) any other Event of Default provided with respect to Securities of that tranche.



     SECTION 502. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6))
with respect to Securities of any tranche at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that tranche may declare the principal amount of all the Securities of
that tranche (or, in the case of any Security of that tranche which specifies an amount to be due
and payable thereon upon acceleration of the Maturity thereof, such amount as may be specified by
the terms thereof) to be due and payable immediately, by a notice in writing to the Company and the
Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an Event of Default
specified in Section 501(5) or 501(6) with respect to Securities of any tranche at the time
Outstanding occurs, the principal amount of all the Securities of that tranche (or, in the case of
any Security of that tranche which specifies an amount to be due and payable thereon upon
acceleration of the Maturity thereof, such amount as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.



     At any time after such a declaration of acceleration with respect to Securities of any tranche
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that tranche, by written notice to the Company, the Guarantor and the
Trustee, may rescind and annul such declaration and its consequences if




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




     (A) all overdue interest on all Securities of that tranche,





40









 





     (B) the principal of (and premium, if any, on) any Securities of that tranche
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,




     (C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and




     (D) 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 Securities of that tranche, other than the
non-payment of the principal of Securities of that tranche which have become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.



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



     SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company and the Guarantor each covenants that if




     (1) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or




     (2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,



they will, upon demand of the Trustee, jointly and severally pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such Securities for principal
and any premium and interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.



     If an Event of Default with respect to Securities of any tranche occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such tranche by such appropriate judicial proceedings as the Trustee shall
deem necessary to protect and enforce any such rights,




41









 





whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or
to enforce any other proper remedy.



     SECTION 504. Trustee May File Proofs of Claim.



     In case of any judicial proceeding relative to the Company or the Guarantor, or any other
obligor upon the Securities, its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized
under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any
such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.



     No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.



     SECTION 505. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



     SECTION 506. Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:



42









 





     FIRST: To the payment of all amounts due the Trustee under Section 607;



     SECOND: To the payment of the amounts then due and unpaid for principal of and any premium
and interest on the Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest, respectively; and



     THIRD: To the payment of the remainder, if any, to the Company, the Guarantor or to
whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may
direct.




     SECTION 507. Limitation on Suits.



     No Holder of any Security of any tranche shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless




     (1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that tranche;




     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that tranche shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;




     (3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance
with such request;




     (4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that tranche;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.





43









 





     SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and
to Convert.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date), and, if the
terms of such Security so provide, to convert such Security in accordance with its terms, and to
institute suit for the enforcement of any such payment and, if applicable, any such right to
convert, and such rights shall not be impaired without the consent of such Holder.




     SECTION 509. Restoration of Rights and Remedies.



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



     SECTION 510. Rights and Remedies Cumulative.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.



     SECTION 511. Delay or Omission Not Waiver.



     No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



     SECTION 512. Control by Holders.



     The Holders of a majority in principal amount of the Outstanding Securities of any tranche
shall have the right to direct the time, method and place of conducting any




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proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such tranche, provided that



     (1) such direction shall not be in conflict with any rule of law or with this
Indenture, and




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.




     SECTION 513. Waiver of Past Defaults.



     The Holders of not less than a majority in principal amount of the Outstanding Securities of
any tranche may on behalf of the Holders of all the Securities of such tranche waive any past
default hereunder with respect to such tranche and its consequences, except a default




     (1) in the payment of the principal of or any premium or interest on any Security of
such tranche, or




     (2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
tranche affected.



     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 this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     SECTION 514. Undertaking for Costs.



     In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs, including reasonable attorneys’ fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company, the Guarantor or
the Trustee or, if applicable, in any suit for the enforcement of the right to convert any Security
in accordance with its terms.



     SECTION 515. Waiver of Usury, Stay or Extension Laws.



     Each of the Company and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law





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wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this Indenture; and the
Company and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.




ARTICLE VI




The Trustee




     SECTION 601. Certain Duties and Responsibilities.



     The Duties and responsibilities of the Trustee shall be provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.



     SECTION 602. Notice of Defaults.



     If a default occurs hereunder with respect to Securities of any tranche, the Trustee shall
give the Holders of Securities of such tranche notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such tranche, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such tranche.



     SECTION 603. Certain Rights of Trustee.



     Subject to the provisions of Section 601:




     (1) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;





46









 






     (2) any request or direction of the Company or the Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or a Guarantor Request or
Guarantor Order, as the case may be, and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution thereof;




     (3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an
Officers’ Certificate of the Company or the Guarantor;




     (4) the Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;




     (5) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant
to this Indenture, unless such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;




     (6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, or the Guarantor, personally or by
agent or attorney;




     (7) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;




     (8) the Trustee shall not be liable for any action taken, suffered or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;




     (9) the Trustee shall not be deemed to have notice of any default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default





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is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;




     (10) the rights, privileges, protections, immunities and benefits given to the
Trustee, including its rights to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder; and




     (11) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.




     SECTION 604. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained herein and in the Securities and the Guarantees endorsed thereon,
except the Trustee’s certificates of authentication, shall be taken as the statements of the
Company and the Guarantor, as the case may be, and the Trustee does not assume any responsibility
for their correctness. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.



     SECTION 605. May Hold Securities.



     The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company or the
Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.



     SECTION 606. Money Held in Trust.



     Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company or the Guarantor.



     SECTION 607. Compensation and Reimbursement.



     The Company and the Guarantor jointly and severally agree




     (1) to pay to the Trustee from time to time such compensation as shall be agreed in
writing between the parties for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a trustee of
an express trust);





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     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and




     (3) to indemnify each of the Trustee or any predecessor Trustee and their agents for,
and to hold them harmless against, any and all losses, liabilities, damages, claims or
expenses including taxes (other than taxes imposed on the income of the Trustee) incurred
without negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim
(whether asserted by the Company, the Guarantor, a Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or duties hereunder or
in connection with enforcing the provisions of this Section.



     When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable Federal or State bankruptcy, insolvency or other similar
law.



     The provisions of this Section shall survive the termination of this Indenture.



     SECTION 608. Conflicting Interests.



If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
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 this Indenture with respect to Securities
of more than one series or tranche or a trustee under any other indenture, a fiscal agent under any fiscal
agency agreement or a warrant agent under any warrant agreement, of the Company or the Guarantor.



     SECTION 609. Corporate Trustee Required; Eligibility.



     There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to
act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office in the Borough of Manhattan, The City of New York. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this




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Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time the
Trustee with respect to the Securities of any series shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.



     SECTION 610. Resignation and Removal; Appointment of Successor.



     No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.




     The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company and the Guarantor. If the instrument of acceptance by
a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 60
days after the giving of such notice of resignation, the resigning Trustee may petition, at the
expense of the Company or the Guarantor, any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.



     The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee, the Company and the Guarantor. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of a notice of removal pursuant to this paragraph, the Trustee being removed
may petition, at the expense of the Company or the Guarantor, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.



     If at any time:




     (1) the Trustee shall fail to comply with Section 608 after written request therefor
by the Company, the Guarantor or by any Holder who has been a bona fide Holder of a
Security for at least six months, or




     (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company, the Guarantor or by any such Holder, or




     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,




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then, in any such case, (A) the Company or the Guarantor by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee or Trustees.




     If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company or the Guarantor, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company, the Guarantor or the Holders and
accepted appointment in the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.



     The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.



     SECTION 611. Acceptance of Appointment by Successor.



     In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company,
the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor




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Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.



     In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series and the Guarantee
endorsed thereon to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series and the Guarantee endorsed thereon as
to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on
request of the Company, the Guarantor or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.



     Upon request of any such successor Trustee, the Company and the Guarantor shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph,
as the case may be.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.




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     SECTION 612. Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.



     SECTION 613. Preferential Collection of Claims Against Company.



     If and when the Trustee shall be or become a creditor of the Company or the Guarantor (or any
other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company
or the Guarantor (or any such other obligor).



ARTICLE VII




Holders’ Lists and Reports by Trustee, Company and the Guarantor




     SECTION 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders.



     The Company and the Guarantor will furnish or cause to be furnished to the Trustee




     (1) semi-annually, not later than May 15 and November 15 in each year, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders of
Securities of each tranche as of the immediately preceding May 1 or November 1, as the case
may be, and




     (2) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company and the Guarantor of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is furnished;


excluding from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.



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     SECTION 702. Preservation of Information; Communications to Holders.



     The Trustee shall preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.



     The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.



     Every Holder of Securities, by receiving and holding the same, agrees with the Company, the
Guarantor and the Trustee that none of the Company, the Guarantor or the Trustee or any agent of
any of them shall be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.




     SECTION 703. Reports by Trustee.



     The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.



     Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 1 and shall be dated as of May 1 in each calendar year, commencing
in 2008.



     A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company and the Guarantor. The Company and the Guarantor will notify the Trustee when any
Securities are listed on any stock exchange and of any delisting thereof.



     SECTION 704. Reports by Company and the Guarantor.



     The Company and the Guarantor shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to
such Act; provided that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is filed with the Commission.




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ARTICLE VIII




Consolidation, Merger, Conveyance, Transfer or Lease




     SECTION 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms.



     (a)
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety to any Person, and
the Company shall not permit any Person to consolidate with or merge into
the Company, unless:



     (1) in case the Company shall consolidate with or merge into another Person or
convey, transfer or lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the properties and assets
of the Company substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of any domestic or foreign
jurisdiction and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Company to be
performed or observed and, for each Security that by its terms provides for conversion,
shall have provided for the right to convert such Security in accordance with its terms;




     (2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary of the Company as
a result of such transaction as having been incurred by the Company or such Subsidiary at
the time of such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened and be
continuing;




     (3) if, as a result of any such consolidation or merger or such conveyance,
transfer or lease, properties or assets of the Company would become subject to a pledge,
lien or other similar encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness or contractual obligations secured thereby; and




     (4) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.



     (b) The Guarantor shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, and the
Guarantor shall not permit any Person to consolidate with or merge into the Guarantor, unless:





     (1) in case the Guarantor shall consolidate with
or merge into another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such consolidation or into
which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the
Guarantor substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of any domestic or foreign
jurisdiction and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance
or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed and, for each Security that by
its terms provides for conversion, shall have provided for the right to convert such
Security in accordance with its terms;




     (2) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Guarantor or any Subsidiary of the Guarantor as a result of such transaction as having been incurred by
the Guarantor or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be continuing;




     (3) if, as a result of any such consolidation or merger or such conveyance, transfer
or lease, properties or assets of the Guarantor would
become subject to a pledge, lien or other similar encumbrance which would not be permitted
by this Indenture, the Guarantor or such successor
Person, as the case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness or
contractual obligations secured thereby; and




     (4) the Guarantor has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this Article and
that




55









 





all conditions precedent herein provided for relating to such transaction have been
complied with.



     SECTION 802. Successor Substituted.



     Upon any consolidation of the Company or the Guarantor with, or merger of the Company or the
Guarantor into, any other Person or any conveyance, transfer or lease of the properties and assets
of the Company or the Guarantor substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company or the Guarantor, as the
case may be, is merged or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the
case may be, under this Indenture with the same effect as if such successor Person had been named
as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities (including the Guarantees).



ARTICLE IX




Supplemental Indentures




     SECTION 901. Supplemental Indentures Without Consent of Holders.



     Without the consent of any Holders, the Company and the Guarantor, when authorized by their
Board Resolutions, and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:




     (1) to evidence the succession of another Person to the Company or the Guarantor, as
the case may be, and the assumption by any such successor of the covenants of the Company
or the Guarantor, as the case may be, herein and in the Securities or the Guarantees
endorsed thereon; or




     (2) to add to the covenants of the Company or the Guarantor for the benefit of the
Holders of all or any series or tranche of Securities (and if such covenants are to be for
the benefit of less than all series or tranches within a series of Securities, stating that
such covenants are expressly being included solely for the benefit of such series or
tranche or tranches within the relevant series) or to surrender any right or power herein
conferred upon the Company or the Guarantor with regard to all or any series or tranche of Securities (and if any such surrender is to be made
with regard to less than all series or tranches within a series of Securities, stating that such
surrender is expressly being made solely with regard to such series or tranche or tranches within
the relevant series); or




     (3) to add any additional Events of Default for the benefit of the Holders of all or
any series or tranche of Securities (and if such additional Events of Default are to be for
the benefit of less than all series or tranches within a series of Securities, stating that
such additional Events of Default are expressly being



56









 





included solely for the benefit of
such series or tranche or tranches within the relevant series); or



     (4) to add to or change any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in uncertificated form; or




     (5) to add to, change or eliminate any of the provisions of this Indenture in respect
of one or more series or tranches of Securities, provided that any such addition, change or
elimination in respect of any series or tranche (A) shall
neither (i) apply to any Security of any series or tranche, as
the case may be, created prior to the
execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective only when there is no
such Security Outstanding; or




     (6) to secure the Securities pursuant to the requirements of Section 801(3) or Section
1005 or otherwise; or




     (7)
to establish the form or terms of Securities of any series or tranche or the Guarantees to
be endorsed thereon as permitted by Sections 201 and 301; or




     (8) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611; or




     (9) to add to or change any of the provisions of this Indenture with respect to any
Securities or the Guarantees endorsed thereon that by their terms may be converted into
securities or other property other than Securities of the same tranche, in order to permit
or facilitate the issuance, payment or conversion of such Securities; or




     (10) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided that such
action pursuant to this Clause (10) shall not adversely affect the interests of the Holders
of Securities of any tranche in any material respect.




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     SECTION 902. Supplemental Indentures With Consent of Holders.



     With the consent of the Holders of a majority in principal amount of the Outstanding
Securities of all tranches affected by such supplemental indenture, considered together as one
class for this purpose (plus, if and as the terms applicable to any such affected tranche pursuant
to Section 301 so provide, the consent of the Holders of a majority in principal amount of the
Outstanding Securities of such affected tranche or of any other Persons acting on behalf of such
Holders), by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the
Company and the Guarantor, when authorized by their respective Board Resolutions, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities of such tranche or tranches
under this Indenture; provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,



     (1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other Security which would
be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or permit the Company to redeem any Security if, absent such supplemental
indenture, the Company would not be permitted to do so, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or




     (2) if any Security provides that the Holder may require the Company to repurchase or
convert such series or Security, impair such Holder’s right to require repurchase or conversion of
such Security on the terms provided therein, or




     (3) reduce the percentage in principal amount of the Outstanding Securities of any one
or more series or tranches (considered separately or together as one class, as applicable), the
consent of whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or




     (4) modify any of the provisions of this Section, Section 513 or Section 1006, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that



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this Clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
“the Trustee” and concomitant changes in this Section and Section 1006, or the deletion of
this proviso, in accordance with the requirements of Sections 611 and 901(8).



     A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
or tranches of Securities, or which modifies the rights of the Holders of Securities of such series
or tranche or tranches with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of Securities of any other
series, or of any other tranche or tranches, as applicable.



     It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.



     SECTION 903. Execution of Supplemental Indentures.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



     SECTION 904. Effect of Supplemental Indentures.



     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.



     SECTION 905. Conformity with Trust Indenture Act.



     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.



     SECTION 906. Reference in Securities to Supplemental Indentures.



     Securities of any tranche authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company and the Guarantor shall so determine, new Securities of any tranche so modified as to
conform, in the opinion of the Trustee, the







59









 





Company and the Guarantor, to any such supplemental
indenture may be prepared and executed by the Company (with Guarantees of the Guarantor endorsed
thereon) and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such tranche.



ARTICLE X




Covenants




     SECTION 1001. Payment of Principal, Premium and Interest.



     The Company covenants and agrees for the benefit of each tranche of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
tranche in accordance with the terms of the Securities and this Indenture.




     SECTION 1002. Maintenance of Office or Agency.



     Subject to the last paragraph of this Section, the Company will maintain in
each Place of Payment for any tranche of Securities an office or agency where Securities of that
tranche may be presented or surrendered for payment, where Securities of that tranche may be
surrendered for registration of transfer or exchange, where
Securities of that tranche may be surrendered for
conversion and where notices and demands to or upon the Company or the Guarantor in respect of the
Securities of that tranche and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office,
and the Company and the Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.



     The Company or the Guarantor may also from time to time designate one or more other offices or
agencies where the Securities of one or more tranches may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its obligation pursuant
to the first sentence of the preceding paragraph to maintain an office or agency in each Place of
Payment for Securities of any tranche for such purposes. The Company
or the Guarantor, as the case may be, will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.



     With respect to any Global Security, and except as otherwise may be specified for such Global
Security as contemplated by Section 301, the Corporate Trust Office of the Trustee shall be the
Place of Payment where such Global Security may be presented or




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surrendered for payment or for
registration of transfer or exchange, or where successor Securities may be delivered in exchange
therefor, provided, however, that any such payment, presentation, surrender or delivery effected
pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to
have been effected at the Place of Payment for such Global Security in accordance with the
provisions of this Indenture.



     SECTION 1003. Money for Securities Payments to Be Held in Trust.



     If the Company shall at any time act as its own Paying Agent with respect to any tranche of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that tranche, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.




     Whenever the Company shall have one or more Paying Agents for any tranche of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that tranche, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to
Section 1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.



     The Company will cause each Paying Agent for any tranche of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that
tranche) in the making of any payment in respect of the Securities of that tranche, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that tranche.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any tranche
and remaining unclaimed for two years after such principal,




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premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company (and, pursuant to the
Guarantees endorsed thereon, the Guarantor) for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may, at the expense of the Company,
cause to be published once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.




     SECTION 1004. Statement by Officers as to Default.



     Each of the Company and the Guarantor will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company or the Guarantor, respectively, ending after the date
hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers
thereof the Company or the Guarantor, as the case may be, is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company or the Guarantor
shall be in default, specifying all such defaults and the nature and status thereof of which they
may have knowledge.



     SECTION 1005. Restriction on Certain Liens.



     The
Guarantor will not create, assume, incur or guarantee any indebtedness for
borrowed money that is secured by a pledge, lien or other similar encumbrance (except for Permitted
Liens) on the Guarantor’s or any of its Subsidiary’s voting or profit
participating equity ownership interests in GS&Co. (or in any
Subsidiary of the Guarantor that beneficially owns or
holds any such interests in GS&Co., directly or indirectly), unless the Guarantor also secures the Securities equally and ratably with (or, at the option of the
Guarantor, prior to) the indebtedness secured thereby.



     SECTION 1006. Waiver of Certain Covenants.



     Except
as otherwise specified as contemplated by Section 301 for
Securities of a specific series or tranche, the Company may, with respect to the Securities of any one or more tranches, omit in any
particular instance to comply with any term, provision or condition set forth in any covenant
provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
tranche or tranches or in Article Eight or Section 1005 if, before the time for such compliance,
the Holders of a majority in principal amount of the Outstanding Securities of all tranches
affected by such waiver, considered together as one class for this purpose (plus, if and as the
terms applicable to any such affected tranche pursuant to Section 301 so provide, the consent of
the Holders



62












 




of a majority in principal amount of the Outstanding Securities of such affected
tranche or of any other Persons acting on behalf of such Holders) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.




ARTICLE XI




Redemption of Securities




     SECTION 1101. Applicability of Article.



     Securities of any tranche which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as contemplated by
Section 301 for such Securities) in accordance with this Article.



     SECTION 1102. Election to Redeem; Notice to Trustee.



     The election of the Company to redeem any Securities shall be established in or pursuant to a
Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.
In case of any redemption at the election of the Company of less than all the Securities of any
tranche (including any such redemption affecting only a single Security), the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such tranche to be redeemed and, if applicable, of
the tenor of the Securities. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company and the Guarantor shall each furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.



     SECTION 1103. Selection by Trustee of Securities to Be Redeemed.



     If
less than all the Securities of any tranche are to be redeemed (unless all the Securities
of such tranche and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such tranche not previously
called for redemption, by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount of any Security of
such tranche, provided that the unredeemed portion of the principal amount of any Security shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination)
for such Security. If less than all the Securities of such tranche




63









 






and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such tranche and specified tenor not previously called for redemption in accordance with the preceding
sentence.



     If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.



     The Trustee shall promptly notify the Company and each Security Registrar in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be redeemed.



     The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.



     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.



     SECTION 1104. Notice of Redemption.



     Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 days nor more than 60 days prior to the Redemption Date (or within such period as otherwise
specified as contemplated by Section 301 for Securities of the relevant tranche), to each Holder of
Securities to be redeemed, at his address appearing in the Security Register.



     All notices of redemption shall identify the Securities to be redeemed (including CUSIP
numbers, if any) and shall state:




     (1) the Redemption Date,




     (2) the Redemption Price,




     (3) if less than all the Outstanding Securities of any tranche consisting of more than
a single Security are to be redeemed, the identification (and, in the case



64









 





of partial
redemption of any such Securities, the principal amounts) of the particular Securities to
be redeemed and, if less than all the Outstanding Securities of any tranche consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be
redeemed,



     (4) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,




     (5) the place or places where each such Security is to be surrendered for payment of
the Redemption Price,




     (6) for any Securities that by their terms may be converted, the terms of conversion,
the date on which the right to convert the Security to be redeemed will terminate and the
place or places where such Securities may be surrendered for conversion, and




     (7) that the redemption is for a sinking fund, if such is the case.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, by a Company Request delivered at least ten days prior to the date such
notice is to be given (unless a shorter period shall be acceptable to the Trustee, which acceptance
shall not be unreasonably withheld), by the Trustee in the name and at the expense of the Company
and shall be irrevocable.



     SECTION 1105. Deposit of Redemption Price.



     Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities called for redemption on that date
which have been converted prior to the date of such deposit.



     If any Security called for redemption is converted, any money deposited with the Trustee or
with any Paying Agent or so segregated and held in trust for the redemption of such Security shall
(subject to any right of the Holder of such Security or any Predecessor Security to receive
interest as provided in the last paragraph of Section 307 or in the terms of such Security) be paid
to the Company upon Company Request or, if then held by the Company, shall be discharged from such
trust.



     SECTION 1106. Securities Payable on Redemption Date.



     Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption



65









 





Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, instalments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.



     SECTION 1107. Securities Redeemed in Part.



     Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company, the Guarantor or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the Guarantor and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same
tranche and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered, with the Guarantees of
the Guarantor endorsed thereon.



ARTICLE XII




Sinking Funds




     SECTION 1201. Applicability of Article.



     The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any tranche except as otherwise specified as contemplated by Section 301 for such
Securities.



     The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such Securities.




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     SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.



     The Company and the Guarantor (1) may deliver Outstanding Securities of a tranche (other than
any previously called for redemption) and (2) may apply as a credit Securities of a tranche which
have been converted in accordance with their terms or which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any Securities of such
tranche required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms
of such Securities; provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for such purpose by the
Trustee at the Redemption Price, as specified in the Securities so to be redeemed (or at such other
prices as may be specified for such Securities as contemplated in Section 301), for redemption
through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.



     SECTION 1203. Redemption of Securities for Sinking Fund.



     Not less than 90 days (or such shorter period as shall be satisfactory to the Trustee) prior
to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities pursuant to Section 1202 and will also deliver to the Trustee
any Securities to be so delivered. Not less than 60 days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.



ARTICLE XIII




Defeasance and Covenant Defeasance




     SECTION 1301. Company’s or Guarantor’s Option to Effect Defeasance or Covenant Defeasance.



     The Company or the Guarantor may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities, any series of Securities
or any tranche of Securities, and the Guarantees endorsed thereon, designated pursuant to Section 301 as being
defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance




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with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution
of each of the Company and the
Guarantor or in another manner specified as contemplated by Section 301 for
such Securities.



     SECTION 1302. Defeasance and Discharge.



     Upon the Company’s or the Guarantor’s exercise of its option (if any) to have this Section
applied to any Securities, any series of Securities or any tranche of
Securities, and the Guarantees endorsed thereon, the Company and the Guarantor shall be
deemed to have been discharged from its obligations with respect to such Securities and Guarantees, as provided in this Section on and after the date the conditions set
forth in Section 1304(1) are satisfied (hereinafter called “Defeasance”). For this purpose, such
Defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and Guarantees and to have satisfied all its
other obligations under such Securities and Guarantees and this Indenture insofar as such
Securities and Guarantees are concerned (and the Trustee, at the expense of the Company or the
Guarantor, as the case may be, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund described in Section
1304 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company’s obligations with
respect to such Securities, and the Guarantor’s obligations with respect to such Guarantees under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company or the
Guarantor may exercise its option (if any) to have this Section applied to any Securities and the
Guarantees endorsed thereon, notwithstanding the prior exercise of its option (if any) to have Section 1303 applied
to such Securities and Guarantees.



     SECTION 1303. Covenant Defeasance.




     Upon the Company’s or the Guarantor’s exercise of its option (if any) to have this Section
applied to any Securities, any series of Securities or any tranche of
Securities, and the
Guarantees endorsed thereon, (1) the Company shall be released from its
obligations under, and the Guarantor will have no liability in
respect of, Section 801(3) and Section 1005, and any covenants provided pursuant to Section
301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Section 501(4) (with respect to any of Section 801(3) and Section 1005,
and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7)) and 501(8) shall be
deemed not to be or result in an Event of Default, in each case with respect to such Securities and
Guarantees as provided in this Section on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant
Defeasance means that, with respect to such Securities and
Guarantees, the Company may omit to comply with, and



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the Company and
the Guarantor shall have no liability in respect of, any term, condition or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this
Indenture and such Securities and Guarantees shall be unaffected thereby.



     SECTION 1304. Conditions to Defeasance or Covenant Defeasance.



     The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities, any series of Securities or any tranche of Securities, or any Guarantees:




     (1) The Company or the Guarantor shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this Article
applicable to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) such other obligations or arrangements as may be specified as
contemplated by Section 301 with respect to such Securities, or (D) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any premium and interest on
such Securities on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any
security which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the custodian
in respect of





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the U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.



     (2) In the event of an election to have Section 1302 apply to any Securities, any
series of Securities or any tranche of Securities, or any Guarantees,
the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company or the Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling
or (B) since the date of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.




     (3) In the event of an election to have Section 1303 apply to any Securities, any
series of Securities or any tranche of Securities, or any Guarantees,
the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.




     (4) The Company or the Guarantor shall have delivered to the Trustee an Officers’
Certificate to the effect that neither such Securities nor any other Securities of the same
series or tranche, as applicable, if then listed on any securities exchange, will be
delisted as a result of such deposit.




     (5) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied until after
such 90th day).




     (6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).




     (7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company
or the Guarantor is a party or by which it is bound.





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     (8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment
Company Act unless such trust shall be registered under the Investment Company Act or
exempt from registration thereunder.




     (9) The Company or the Guarantor shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.



     SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.



     Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law.



     The Company or the Guarantor shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company or the Guarantor from time to time upon Company Request or
Guarantor Request, as the case may be, any money or U.S. Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.



     SECTION 1306. Reinstatement.



     If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities (and the



71









 





Guarantees
endorsed thereon) from which the Company or the
Guarantor has been discharged or released pursuant to Section 1302 or 1303
shall be revived and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities (and Guarantees), until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance
with this Article; provided, however, that if the Company or the Guarantor makes any payment of
principal of or any premium or interest on any such Security following such reinstatement of its
obligations, the Company or the Guarantor, as the case may be, shall be subrogated to the rights (if any) of the Holders
of such Securities to receive such payment from the money so held in trust.



ARTICLE XIV




Guarantee




     SECTION 1401. Guarantee.



     The Guarantor hereby fully and unconditionally guarantees to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the due
and punctual payment of the principal of, and premium, if any, and interest, if any, on the
Security of such series or tranche when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in
accordance with the terms of such Security and of this Indenture. In case of the failure of the
Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to
be made punctually when and as the same shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.



     The Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional
irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of
such Security or this Indenture, any failure to enforce the provisions of such Security or this
Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which may otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however,
that notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Security, or increase the interest
rate thereon, change any redemption provisions thereof (including any change to increase any
premium payable upon redemption thereof) or change the Stated
Maturity of any payment thereon, or increase the
principal amount of any Original Issue Discount Security that would be due and payable upon a
declaration of acceleration or the maturity thereof pursuant to Section 502 of this Indenture.




72









 





     The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders exhaust any right or take any action against the
Company or any other Person, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be
discharged in respect of any Security except by complete performance of the obligations contained
in such Security and in this Guarantee. This Guarantee shall constitute a guaranty of payment and
not of collection. The Guarantor hereby agrees that, in the event of a default in payment of
principal, or premium, if any, or interest, if any, on any Security, whether at its Stated
Maturity, by declaration of acceleration, call for redemption or otherwise, legal proceedings may
be instituted by the Trustee on behalf of, or by, the Holder of such Security, subject to the terms
and conditions set forth in this Indenture, directly against the Guarantor to enforce this
Guarantee without first proceeding against the Company.



     The obligations of the Guarantor hereunder with respect to any Security shall be continuing
and irrevocable until the date upon which the entire principal of, premium, if any, and interest on
such Security has been, or has been deemed pursuant to the provisions of Article Four of this
Indenture to have been, paid in full or otherwise discharged.



     The Guarantor shall be subrogated to all rights of the Holders of the Securities upon which
its Guarantee is endorsed against the Company in respect of any amounts paid by the Guarantor on
account of such Securities pursuant to the provisions of its Guarantee or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out
of, or based upon, such right of subrogation until the principal of, and premium, if any, and
interest, if any, on all Securities issued hereunder that are due and payable shall have been paid
in full.



     This Guarantee shall remain in full force and effect and continue notwithstanding any petition
filed by or against the Company for liquidation or reorganization, the Company becoming insolvent
or making an assignment for the benefit of creditors or a receiver or trustee being appointed for
all or any significant part of the Company’s assets, and shall, to the fullest extent permitted by
law, continue to be effective or reinstated, as the case may be, if any time payment of any
Security, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any Holder or such Security, whether as a “voidable preference,”
“fraudulent transfer,” or otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned on
a Security, such Security shall, to the fullest extent permitted by law, be reinstated and deemed
paid only by such amount paid and not so rescinded, reduced, restored or returned.




73









 




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



74









 





     In Witness Whereof, the parties hereto have caused this Indenture to be duly executed
as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	GS Finance Corp.
	 
	 	 	 	 	 	 
	 	 	By:	 	 /s/ Wing Yee
Veronica Foo
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Wing Yee Veronica Foo
	 

	 	 	 	Title:
	 	Treasurer
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	The Goldman Sachs Group, Inc.
	 
	 	 	 	 	 	 
	 	 	By:	 	 /s/
Manda J. D’Agata
	 	 	 	 	 
	 

	 	 	 	Name:
	 	Manda J. D’Agata
	 

	 	 	 	Title:
	 	Assistant Treasurer
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of New York
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/
Teisha Wright
	 	 	 	 	 
	 

	 	 	 	Name:	 	Teisha Wright
	 

	 	 	 	Title:	 	Assistant Treasurer






 









 







	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.:
	 	 
	COUNTY OF NEW YORK

	 	)	 	 






     On
the 4th day of December in the year 2007 before me, the undersigned,
personally appeared Wing Yee Veronica Foo, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she executed the same in her
capacity, and that by her signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.




	 	 	 	 	 
	 

	 	 
	 	/s/ Sally A. Mead








	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.:
	 	 
	COUNTY OF NEW YORK

	 	)	 	 






     On
the 4th day of December in the year 2007 before me, the undersigned,
personally appeared Wing Yee Veronica Foo, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she executed the same
in her capacity, and that by her signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.






	 	 	 	 	 
	 

	 	 
	 	/s/ Sally A. Mead






	 	 	 	 	 
	STATE OF NEW YORK

	 	)	 	 
	 

	 	) ss.:
	 	 
	COUNTY OF NEW YORK

	 	)	 	 






     On
the 4th day of December in the year 2007 before me, the undersigned,
personally appeared Teisha Wright, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she executed the same in her
capacity, and that by her signature on the instrument, the individual, or the person
upon behalf of which the individual acted, executed the instrument.




	 	 	 	 	 
	 

	 	 
	 	/s/ Richard D. Gillespie