{"id":43806,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/goldman-sachs-underwriting-agreement-form.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"goldman-sachs-underwriting-agreement-form","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/goldman-sachs-underwriting-agreement-form.html","title":{"rendered":"Goldman Sachs Underwriting Agreement Form"},"content":{"rendered":"
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The Goldman Sachs Group, Inc.<\/b>\n\n<\/p>
Title of Preferred Stock<\/b>\n\n<\/p>
[FORM OF]<\/b><\/u>\n\n<\/p>
Underwriting Agreement<\/b><\/u>\n\n\n\n<\/p>
<\/u>, 20<\/u>\n\n\n<\/p>
Goldman, Sachs & Co.,\n\n\n<\/p>
As representatives of the several Underwriters
\nnamed in ScheduleI hereto,<\/div>\n\n
85 Broad Street,
\nNew York, New York 10004.<\/div>\n\n\n
Ladies and Gentlemen:\n\n\n<\/p>
The Goldman Sachs Group, Inc., a Delaware corporation (the \u0093Company\u0094), proposes, subject to\nthe terms and conditions stated herein, to issue and sell to the Underwriters named in ScheduleI\nhereto (the \u0093Underwriters\u0094) the Preferred Shares that are\nspecified in ScheduleIII hereto (the \u0093<\/b>Preferred <\/b>Shares\u0094) <\/b>and are represented by depositary shares (the \u0093Depositary Shares\u0094) deposited\nagainst delivery of Depositary Receipts (the \u0093Depositary Receipts\u0094) evidencing the Depositary\nShares that are to be issued by\n\n<\/u> as depositary (the \u0093Depositary\u0094) under the Deposit Agreement,\ndated\n<\/u>,\n20<\/u>, among the Company, the Depositary and the holders from time to time of the\nDepositary Receipts issued thereunder. Each Depositary Share represents beneficial ownership of a\nfraction of a Preferred Share, as specified in ScheduleIII to this Agreement<\/b>. <\/b>The Depositary\nShares and the Preferred Shares represented thereby are collectively called the \u0093Shares\u0094. <\/b>The\nShares consist of (i)an aggregate of <\/u> <\/b>Depositary <\/b>Shares <\/b>and\nthe <\/u>\n\nPreferred Shares\nrepresented thereby <\/b>(<\/b>collectively, <\/b>the \u0093Firm Shares\u0094) and (ii)at the election of the\nUnderwriters, up to an aggregate of <\/u> additional <\/b>Depositary <\/b>Shares <\/b>and the <\/u> additional\nPreferred Shares represented thereby <\/b>as provided in Section2 hereof (<\/b>collectively, <\/b>the\n\n\u0093Optional Shares\u0094).\n\n\n<\/p>
The Company acknowledges and agrees that Goldman, Sachs & Co. may use the Prospectus (as\ndefined below) in connection with offers and sales of the Shares as contemplated in the Prospectus\nunder the caption \u0093Plan of Distribution \u0097 Market-Making Resales by Affiliates\u0094 (\u0093Secondary Market\nTransactions\u0094). The Company further acknowledges and agrees that Goldman, Sachs & Co. is under no\nobligation to effect any Secondary Market Transactions and, if it does so, it may discontinue\neffecting such transactions at any time without providing any\n\n\n<\/p>
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notice to the Company. The term \u0093Underwriter\u0094, whenever used in this Agreement, shall include\nGoldman, Sachs & Co., whether acting in its capacity as an Underwriter or acting in connection with\na Secondary Market Transaction, except as may be specifically provided otherwise herein.\n\n\n\n<\/p>
1.The Company represents and warrants to, and agrees with, each of the Underwriters that:\n\n\n\n<\/p>
(a)An \u0093automatic shelf registration statement\u0094 as defined under Rule405 under the\nSecurities Act of 1933, as amended (the \u0093Act\u0094), on Form S-3 (File No.333-<\/u>) in respect\nof the Shares has been filed with the Securities and Exchange Commission (the \u0093Commission\u0094)\nnot earlier than three years prior to the date hereof; such registration statement, and any\npost-effective amendment thereto, became effective on filing; and no stop order suspending\nthe effectiveness of such registration statement or any part thereof has been issued and no\nproceeding for that purpose has been initiated or threatened by the Commission, and no\nnotice of objection of the Commission to the use of such registration statement or any\npost-effective amendment thereto pursuant to Rule401(g)(2) under the Act has been received\nby the Company (the base prospectus filed as part of such registration statement, in the\nform in which it has most recently been filed with the Commission on or prior to the date\nof this Agreement, is hereinafter called the \u0093Base Prospectus\u0094; any preliminary prospectus\n(including any preliminary prospectus supplement) relating to the Shares filed with the\nCommission pursuant to Rule 424(b) under the Act is hereinafter called a \u0093Preliminary\nProspectus\u0094; the various parts of such registration statement, including all exhibits\nthereto but excluding Form T-1 and including any prospectus supplement relating to the\nShares that is filed with the Commission and deemed by virtue of Rule430B to be part of\nsuch registration statement, each as amended at the time such part of the registration\nstatement became effective, are hereinafter collectively called the \u0093Registration\nStatement\u0094; the Base Prospectus, as amended and supplemented immediately prior to the\nApplicable Time (as defined in Section 1(c) hereof), is hereinafter called the \u0093Pricing\nProspectus\u0094; the form of the final prospectus relating to the Shares filed with the\nCommission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is\nhereinafter called the \u0093Prospectus\u0094; any reference herein to the Base Prospectus, the\nPricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer\nto and include the documents incorporated by reference therein pursuant to Item12 of Form\nS-3 under the Act, as of the date of such prospectus; any reference to any amendment or\nsupplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be\ndeemed to refer to and include any post-effective amendment to the Registration Statement,\nany prospectus\n\n\n\n<\/p>
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supplement relating to the Shares filed with the Commission pursuant to Rule 424(b)\nunder the Act and any documents filed under the Securities Exchange Act of 1934, as amended\n(the \u0093Exchange Act\u0094), and incorporated therein, in each case after the date of the Base\nProspectus, such Preliminary Prospectus or the Prospectus, as the case may be; and any\nreference to any amendment to the Registration Statement shall be deemed to refer to and\ninclude any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the\nExchange Act after the effective date of the Registration Statement that is incorporated by\nreference in the Registration Statement);\n\n\n\n<\/p>
(b)No order preventing or suspending the use of any Preliminary Prospectus or any\n\u0093issuer free writing prospectus\u0094 as defined in Rule433 under the Act relating to the\nShares (an \u0093Issuer Free Writing Prospectus\u0094) has been issued by the Commission, and each\nPreliminary Prospectus, at the time of filing thereof, conformed in all material respects\nto the requirements of the Act and the rules and regulations of the Commission thereunder,\nand did not contain an untrue statement of a material fact or omit to state a material fact\nrequired to be stated therein or necessary to make the statements therein, in the light of\nthe circumstances under which they were made, not misleading; provided, however, that this\nrepresentation and warranty shall not apply to any statements or omissions made in reliance\nupon and in conformity with information furnished in writing to the Company by an\nUnderwriter through Goldman, Sachs & Co. expressly for use therein;\n\n\n\n\n<\/p>
(c)For the purposes of this Agreement, the \u0093Applicable Time\u0094 is <\/u>:<\/u> <\/b>a<\/b>p<\/b>.m.\n(Eastern time) on the date of this Agreement; the Pricing Prospectus together with the\nstatements under the caption \u0093Description of <\/b>Title of Preferred Stock<\/b>\u0094 and \u0093Description\nof Depositary Shares\u0094 <\/b>in, and the information in the <\/b>table on the <\/b>front cover of, the\nProspectus (collectively, the \u0093Pricing Disclosure Package\u0094) as of the Applicable Time, did\nnot include any untrue statement of a material fact or omit to state any material fact\nnecessary in order to make the statements therein, in the light of the circumstances under\nwhich they were made, not misleading; and each Issuer Free Writing Prospectus listed on\nScheduleII(a) hereto (if any) does not conflict with the information contained in the\nRegistration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free\nWriting Prospectus, as supplemented by and taken together with the Pricing Disclosure\nPackage as of the Applicable Time, did not include any untrue statement of a material fact\nor omit to state any material fact necessary in order to make the statements therein, in\nthe light of the circumstances under which they were made, not misleading; provided,\nhowever, that this representation and warranty shall not apply to statements or omissions\nmade in an Issuer\n\n\n\n<\/p>
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Free Writing Prospectus in\nreliance upon and in conformity with information furnished in writing to the Company\nby an Underwriter through Goldman, Sachs & Co. expressly for use therein;\n\n\n\n<\/p>
(d)The documents incorporated by reference in the Pricing Prospectus and the\nProspectus, when they became effective or were filed with the Commission, as the case may\nbe, conformed in all material respects to the requirements of the Act or the Exchange Act,\nas applicable, and the rules and regulations of the Commission thereunder, and none of such\ndocuments contained an untrue statement of a material fact or omitted to state a material\nfact required to be stated therein or necessary to make the statements therein, in the\nlight of the circumstances under which they were made, not misleading; any further\ndocuments so filed and incorporated by reference in the Prospectus or any further amendment\nor supplement thereto, when such documents become effective or are filed with the\nCommission, as the case may be, will conform in all material respects to the requirements\nof the Act or the Exchange Act, as applicable, and the rules and regulations of the\nCommission thereunder and will not contain an untrue statement of a material fact or omit\nto state a material fact required to be stated therein or necessary to make the statements\ntherein, in light of the circumstances under which they were made, not misleading;\nprovided, however, that this representation and warranty shall not apply to any statements\nor omissions made in reliance upon and in conformity with information furnished in writing\nto the Company by an Underwriter through Goldman, Sachs & Co. expressly for use therein;\nand no such documents were filed with the Commission since the Commission\u0092s close of\nbusiness on the business day immediately prior to the date of this Agreement and prior to\nthe execution of this Agreement, except as set forth on ScheduleII(b) hereto;\n\n\n\n\n<\/p>
(e)The Registration Statement conforms, and the Prospectus and any further amendments\nor supplements to the Registration Statement and the Prospectus will conform, in all\nmaterial respects to the requirements of the Act and the rules and regulations of the\nCommission thereunder and do not and will not, as of the applicable effective date as to\neach part of the Registration Statement and as of the applicable filing date as to the\nProspectus and any amendment or supplement thereto, contain an untrue statement of a\nmaterial fact or omit to state a material fact required to be stated therein or necessary\nto make the statements therein not misleading; provided, however, that this representation\nand warranty shall not apply to any statements or omissions made in reliance upon and in\nconformity with information furnished in writing to the Company by an Underwriter through\nGoldman, Sachs & Co. expressly for use therein;\n\n\n<\/p>
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(f) Neither the Company nor any of its subsidiaries that are listed in the Company\u0092s\nlatest annual report on Form 10-K pursuant to the requirements of Form 10-K and Item\n601(b)(21) of the Commission\u0092s RegulationS-K and are \u0093significant subsidiaries\u0094 as defined\nin Rule1-02(w) of the Commission\u0092s RegulationS-X (the \u0093Significant Subsidiaries\u0094) has\nsustained since the date of the latest audited financial statements included or\nincorporated by reference in the Pricing Prospectus any material loss or interference with\nits business from fire, explosion, flood or other calamity, whether or not covered by\ninsurance, or from any labor dispute or court or governmental action, order or decree,\notherwise than as set forth or contemplated in the Pricing Prospectus; and, since the\nrespective dates as of which information is given in the Registration Statement and the\nPricing Prospectus, there has not been any material adverse change in the capital stock or\nlong-term debt of the Company or any of its Significant Subsidiaries or any material\nadverse change, or any development involving a prospective material adverse change, in or\naffecting the general affairs, management, financial position, stockholders\u0092 equity or\nresults of operations of the Company and its subsidiaries, otherwise than as set forth or\ncontemplated in the Pricing Prospectus;\n\n\n\n\n<\/p>
(g)The Company has been duly incorporated and is validly existing as a corporation in\ngood standing under the laws of the State of Delaware, with power and authority (corporate\nand other) to own its properties and conduct its business as described in the Pricing\nProspectus;\n\n\n\n<\/p>
(h)The Company has an authorized capitalization as set forth in the Pricing\nProspectus, and all of the issued shares of capital stock of the Company have been duly and\nvalidly authorized and issued and are fully paid and non-assessable;\n\n\n\n<\/p>
(i)The <\/b>Preferred <\/b>Shares <\/b>and the Depositary Shares <\/b>have been duly and validly\nauthorized, and, when the Firm Shares are issued and delivered pursuant to this Agreement\nand, in the case of any Optional Shares, pursuant to Additional Shares Options (as defined\nin Section3 hereof) with respect to such Shares, such Shares will be duly and validly\nissued and fully paid and non-assessable; the Shares conform to the description thereof\ncontained in the Pricing Prospectus and will conform to the description thereof\ncontained in the Prospectus;\n\n\n\n<\/p>
(j)The issue and sale of the Shares, the compliance by the Company with all of the\nprovisions of the Shares, this Agreement and each Additional Shares Option (as defined in\nSection3 hereof)<\/b>, the Deposit Agreement <\/b>and the consummation of the transactions herein\nand\n\n\n\n<\/p>
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therein contemplated will not conflict with or result in a breach or violation of any\nof the terms or provisions of, or constitute a default under, any indenture, mortgage, deed\nof trust, loan agreement or other agreement or instrument to which the Company is a party\nor by which the Company is bound or to which any of the property or assets of the Company\nis subject, nor will such action result in any violation of the provisions of the Restated\nCertificate of Incorporation or the Amended and Restated By-laws of the Company or any\nstatute or any order, rule or regulation of any court or governmental agency or body having\njurisdiction over the Company or any of its properties; and no consent, approval,\nauthorization, order, registration or qualification of or with any such court or\ngovernmental agency or body is required for the issue and sale of the Shares by the Company\nor the consummation by the Company of the transactions contemplated by this Agreement\nexcept such as have been obtained under the Act and such consents, approvals,\nauthorizations, registrations or qualifications as may be required under state securities\nor Blue Sky laws in connection with the purchase and distribution of the Shares by the\nUnderwriters;\n\n\n\n<\/p>
(k)Neither the Company nor any of its Significant Subsidiaries is in violation of its\norganizational documents or in default in the performance or observance of any material\nobligation, agreement, covenant or condition contained in any indenture, mortgage, deed of\ntrust, loan agreement, lease or other agreement or instrument to which it is a party or by\nwhich it or any of its properties may be bound;\n\n\n\n<\/p>
(l)The statements set forth in the Pricing Prospectus and the Prospectus under the\ncaptions \u0093Description of <\/b>Title of Preferred Stock<\/b>\u0094, <\/b>\u0093Description of Depositary Shares\u0094,<\/b>\n\n\u0093Description of Preferred Stock We May Offer\u0094, <\/b>\u0093Description of Preferred Stock We May\nOffer \u0097 Fractional or Multiple Shares of Preferred Stock Issued\nand Depositary Shares\u0094<\/b>\nand \u0093Legal Ownership and Book-Entry Issuance\u0094, insofar as they purport to constitute a\nsummary of the terms of the <\/b>Preferred <\/b>Shares <\/b>and the Depositary Shares, respectively<\/b>,\nand under the captions \u0093United States Taxation\u0094 and \u0093Plan of Distribution\u0094, insofar as they\npurport to describe the provisions of the laws and documents referred to therein, are\naccurate, complete and fair;\n\n\n\n\n<\/p>
(m)Other than as set forth in the Pricing Prospectus, there are no legal or\ngovernmental proceedings pending to which the Company or any of its subsidiaries is a party\nor of which any property of the Company or any of its subsidiaries is the subject which, if\ndetermined adversely to the Company or any of its subsidiaries, would individually or in\nthe aggregate have a material adverse effect on the current or future consolidated\nfinancial position, stockholders\u0092 equity or results of\n\n\n<\/p>
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operations of the Company and its subsidiaries; and, to the best of the Company\u0092s\nknowledge, no such proceedings are threatened or contemplated by governmental authorities\nor threatened by others;\n\n\n\n<\/p>
(n)The Company is not and, after giving effect to the offering and sale of the Shares\nand the application of the proceeds thereof, will not be an \u0093investment company\u0094, as such\nterm is defined in the Investment Company Act of 1940, as amended (the \u0093Investment Company\nAct\u0094);\n\n\n\n\n<\/p>
(o)(A) (i)At the time of filing the Registration Statement, (ii)at the time of the\nmost recent amendment thereto for the purposes of complying with Section10(a)(3) of the\nAct (whether such amendment was by post-effective amendment, incorporated report filed\npursuant to Section13 or 15(d) of the Exchange Act or form of prospectus), and (iii)at\nthe time the Company or any person acting on its behalf (within the meaning, for this\nclause only, of Rule 163(c) under the Act) made any offer relating to the Shares in\nreliance on the exemption of Rule163 under the Act, the Company was a \u0093well-known seasoned\nissuer\u0094 as defined in Rule405 under the Act; and (B)at the earliest time after the filing\nof the Registration Statement that the Company or another offering participant made a bona\nfide offer (within the meaning of Rule164(h)(2)) of the Shares, the Company was not an\n\u0093ineligible issuer\u0094 as defined in Rule405 under the Act;\n\n\n\n\n<\/p>
(p)The Company and its Significant Subsidiaries possess all authorizations issued by\nthe appropriate Federal, state and foreign governments, governmental or regulatory\nauthorities, self-regulatory organizations and all courts or other tribunals, and are\nmembers in good standing of each Federal, state or foreign exchange, board of trade,\nclearing house or association and self-regulatory or similar organization necessary to\nconduct their respective businesses as described in the Pricing Prospectus, except as would\nnot, individually or in the aggregate, have a material adverse effect on the prospects,\nfinancial position, stockholders\u0092 equity or results of operations of the Company and its\nsubsidiaries;\n\n\n\n<\/p>
(q)PricewaterhouseCoopers LLP, who have certified certain financial statements of the\nCompany and its subsidiaries, and have audited the Company\u0092s internal control over\nfinancial reporting and management\u0092s assessment thereof, are independent public accountants\nas required by the Act and the rules and regulations of the Commission thereunder;\n\n\n\n<\/p>
(r)The Company maintains a system of internal control over financial reporting (as\nsuch term is defined in Rule13a-15(f) under\n\n\n<\/p>
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the Exchange Act) that complies with the requirements of the Exchange Act and has been\ndesigned by the Company\u0092s principal executive officer and principal financial officer, or\nunder their supervision, to provide reasonable assurance regarding the reliability of\nfinancial reporting and the preparation of financial statements for external purposes in\naccordance with generally accepted accounting principles. Except as disclosed in the\nPricing Prospectus, the Company\u0092s internal control over financial reporting is effective\nand the Company is not aware of any material weaknesses in its internal control over\nfinancial reporting; and\n\n\n\n<\/p>
(s)The Company maintains disclosure controls and procedures (as such term is defined\nin Rule13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange\nAct; such disclosure controls and procedures have been designed to ensure that material\ninformation relating to the Company and its subsidiaries is made known to the Company\u0092s\nprincipal executive officer and principal financial officer by others within those\nentities; and such disclosure controls and procedures are effective.\n\n\n<\/p>
2.Subject to the terms and conditions set forth herein, (a)the Company agrees to issue and\nsell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,\nto purchase from the Company, at the purchase price to the Underwriters set forth in ScheduleIII\nhereto, the number of Firm Shares set forth opposite the name of such Underwriter in ScheduleI\nhereto and, (b)in the event and to the extent that the Underwriters shall exercise the election to\npurchase Optional Shares, as provided below, the Company agrees to issue and sell to each of the\nUnderwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the\nCompany, at the purchase price to the Underwriters set forth in ScheduleIII hereto, such\nUnderwriter\u0092s pro rata share (based on the respective maximum number of Optional Shares set forth\nnext to the Underwriters\u0092 names in ScheduleI hereto) of that portion of the total number of\nOptional Shares as to which such election shall have been exercised on behalf of all the\nUnderwriters.\n\n\n\n<\/p>
3.Upon the authorization by you of the release of the Firm Shares, the several Underwriters\npropose to offer the Firm Shares for sale upon the terms and conditions set forth in the\nProspectus.\n\n\n<\/p>
The Company hereby grants to each of the Underwriters the right (an \u0093Additional Shares\nOption\u0094, which shall be deemed to be part of this Agreement for all purposes) to purchase at their\nelection up to the number of Optional Shares set forth opposite the name of such Underwriter in\nScheduleI hereto on the terms referred to in the paragraph above. Any such election to purchase\nOptional Shares may be exercised by written notice from the Representatives to the Company given\nwithin a period of 30 calendar days after the date of this\n\n\n<\/p>
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Agreement, setting forth the aggregate number of Optional Shares to be purchased by all\nUnderwriters and the date on which such Optional Shares are to be delivered, as determined by the\nRepresentatives, but in no event earlier than the First Time of Delivery (as defined in Section4)\nor, unless the Representatives and the Company otherwise agree in writing, no earlier than two or\nlater than ten business days after the date of such notice.\n\n\n\n<\/p>
4.(a)Certificates for the <\/b>Depositary <\/b>Shares comprising the Firm Shares and any Optional\nShares to be purchased by each Underwriter hereunder, in the form specified in ScheduleIII to this\nAgreement, in such authorized denominations and registered in such names as the Representatives may\nrequest upon at least 48 hours\u0092 prior notice to the Company, shall be delivered by or on behalf of\nthe Company to the Representatives for the account of such Underwriter, against payment by such\nUnderwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same-day)\nfunds to the account specified by the Company to Goldman, Sachs & Co. at least forty-eight hours in\nadvance, (i)with respect to the Firm Shares, all in the manner and at the place and time and date\nspecified in ScheduleIII to this Agreement or at such other place and time and date as the\nRepresentatives and the Company may agree upon in writing, such time and date being herein called\nthe \u0093First Time of Delivery\u0094 and (ii)with respect to the Optional Shares, if any, in the manner\nand at the time and date specified by the Representatives in the written notice given by the\nRepresentatives of the Underwriters\u0092 election to purchase such Optional Shares, or at such other\ntime and date as the Representatives and the Company may agree upon in writing, such time and date,\nif not the First Time of Delivery, herein called the \u0093Second Time of Delivery\u0094. Each such time and\ndate for delivery is herein called a \u0093Time of Delivery\u0094.\n\n\n\n<\/p>
(b)The documents to be delivered at any Time of Delivery by or on behalf of the parties\nhereto pursuant to Section9 hereof, including the cross-receipt for the Shares and any additional\ndocuments requested by the Underwriters pursuant to Section 9(i) hereof, will be delivered at the\noffices of Sullivan & Cromwell LLP, 125 Broad St., New York 10004 (the \u0093Closing Location\u0094), and the\nShares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be\nheld at the Closing Location at <\/u>:<\/u> <\/b>a<\/b>p<\/b>.m., New York City time, on the New York Business Day\nnext preceding any Time of Delivery, at which meeting the final drafts of the documents to be\ndelivered pursuant to the preceding sentence will be available for review by the parties hereto.\nFor the purposes of this Section4, \u0093New York Business Day\u0094 shall mean each Monday, Tuesday,\nWednesday, Thursday and Friday which is not a day on which banking institutions in New York City\nare generally authorized or obligated by law or executive order to close.\n\n\n<\/p>
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5.The Company agrees with each of the Underwriters:\n\n\n\n<\/p>
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus\npursuant to Rule 424(b) under the Act not later than the Commission\u0092s close of business on\nthe second business day following the date of this Agreement; to make no further amendment\nor any supplement to the Registration Statement, the Base Prospectus or the Prospectus\nprior to any Time of Delivery that shall be disapproved by you promptly after reasonable\nnotice thereof; to advise you, promptly after it receives notice thereof, of the time when\nany amendment to the Registration Statement has been filed or becomes effective or any\namendment or supplement to the Prospectus has been filed and to furnish you with copies\nthereof; if requested by you prior to the Applicable Time, to prepare a final term sheet,\ncontaining solely a description of the Shares, in the form set forth in ScheduleIII hereto\nand to file such term sheet pursuant to Rule 433(d) under the Act within the time required\nby such Rule; to file promptly all other material required to be filed by the Company with\nthe Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any\ndefinitive proxy or information statements required to be filed by the Company with the\nCommission pursuant to Section13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to\nthe date of the Prospectus and for so long as the delivery of a prospectus (or in lieu\nthereof, the notice referred to in Rule 173(a) under the Act) is required in connection\nwith the offering or sale of the Shares (including, in the case of Goldman, Sachs & Co., in\nany Secondary Market Transactions during the Secondary Transactions Period as defined in\nSection5A hereof), and during such same period to advise you, promptly after it receives\nnotice thereof, of the time when any amendment to the Registration Statement has been filed\nor becomes effective or any supplement to the Prospectus or any amended Prospectus has been\nfiled with the Commission, of the issuance by the Commission of any stop order or of any\norder preventing or suspending the use of any Preliminary Prospectus or other prospectus in\nrespect of the Shares, of any notice of objection of the Commission to the use of the\nRegistration Statement or any post-effective amendment thereto pursuant to Rule401(g)(2)\nunder the Act, of the suspension of the qualification of the Shares for offering or sale in\nany jurisdiction, of the initiation or threatening of any proceeding for any such purpose,\nor of any request by the Commission for the amending or supplementing of the Registration\nStatement or the Prospectus or for additional information; and, in the event of the\nissuance of any such stop order or of any such order preventing or suspending the use of\nany Preliminary Prospectus or other prospectus in respect of the Shares or suspending any\nsuch qualification, to promptly use its best efforts to obtain the withdrawal of such\norder; and in the event of any such issuance of a notice of objection, promptly to take\nsuch steps including, without\n\n\n\n<\/p>
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limitation, amending the Registration Statement or filing a new registration\nstatement, at its own expense, as may be necessary to permit offers and sales of the Shares\nby the Underwriters (references herein to the Registration Statement shall include any such\namendment or new registration statement);\n\n\n\n<\/p>
(b) If required by Rule430B(h) under the Act, to prepare a form of prospectus in a\nform approved by you and to file such form of prospectus pursuant to Rule 424(b) under the\nAct not later than may be required by Rule 424(b) under the Act; and to make no further\namendment or supplement to such form of prospectus which shall be disapproved by you\npromptly after reasonable notice thereof;\n\n\n\n<\/p>
(c) If by the third anniversary (the \u0093Renewal Deadline\u0094) of the initial effective date\nof the Registration Statement, any of the Shares remain unsold by the Underwriters, the\nCompany will file, if it has not already done so and is eligible to do so, a new automatic\nshelf registration statement relating to the Shares, in a form satisfactory to you. If at\nthe Renewal Deadline the Company is no longer eligible to file an automatic shelf\nregistration statement, the Company will, if it has not already done so, file a new shelf\nregistration statement relating to the Shares, in a form satisfactory to you and will use\nits best efforts to cause such registration statement to be declared effective within 180\ndays after the Renewal Deadline. The Company will take all other action necessary or\nappropriate to permit the public offering and sale of the Shares to continue as\ncontemplated in the expired registration statement relating to the Shares. References\nherein to the Registration Statement shall include such new automatic shelf registration\nstatement or such new shelf registration statement, as the case may be;\n\n\n\n\n<\/p>
(d) Promptly from time to time to take such action as you may reasonably request to\nqualify the Shares for offering and sale under the securities laws of such jurisdictions as\nyou may request and to comply with such laws so as to permit the continuance of sales and\ndealings therein in such jurisdictions for as long as may be necessary to complete the\ndistribution of the Shares (including, in the case of Goldman, Sachs & Co., in any\nSecondary Market Transactions during the Secondary Transactions Period), provided that in\nconnection therewith the Company shall not be required to qualify as a foreign corporation\nor to file a general consent to service of process in any jurisdiction;\n\n\n\n<\/p>
(e) Prior to 10:00a.m., New York City time, on the New York Business Day next\nsucceeding the date of this Agreement and from time to time, to furnish the Underwriters in\nNew York City with written and electronic copies of the Prospectus in such quantities as\nyou may\n\n\n<\/p>
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reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the\nnotice referred to in Rule 173(a) under the Act) is required at any time prior to the\nexpiration of nine months after the time of issue of the Prospectus in connection with the\noffering or sale of the Shares (or, in the case of Goldman, Sachs & Co., in connection with\nany Secondary Market Transactions during the Secondary Transactions Period, whether before\nor after such expiration) and if at such time any event shall have occurred as a result of\nwhich the Prospectus as then amended or supplemented would include an untrue statement of a\nmaterial fact or omit to state any material fact necessary in order to make the statements\ntherein, in the light of the circumstances under which they were made when such Prospectus\n(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not\nmisleading, or, if for any other reason it shall be necessary during such same period to\namend or supplement the Prospectus or to file under the Exchange Act any document\nincorporated by reference in the Prospectus in order to comply with the Act or the Exchange\nAct, to notify you and upon your request to file such document and to prepare and furnish\nwithout charge to each Underwriter and to any dealer in securities as many written and\nelectronic copies as you may from time to time reasonably request of an amended Prospectus\nor a supplement to the Prospectus which will correct such statement or omission or effect\nsuch compliance; and in case any Underwriter is required to deliver a prospectus (or in\nlieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales\nof any of the Shares at any time nine months or more after the time of issue of the\nProspectus, upon your request but at the expense of such Underwriter, to prepare and\ndeliver to such Underwriter as many written and electronic copies as you may request of an\namended or supplemented Prospectus complying with Section10(a)(3) of the Act (it being\nunderstood, however, that the preceding clause, rather than this clause, shall apply with\nrespect to Goldman, Sachs & Co. in connection with any Secondary Market Transactions during\nthe Secondary Transactions Period); provided, however, that the Company may elect, upon\nnotice to Goldman, Sachs & Co., not to comply with this paragraph (e)with respect to any\nSecondary Market Transaction, but only for a period or periods that the Company reasonably\ndetermines are necessary in order to avoid premature disclosure of material, non-public\ninformation, unless, notwithstanding such election, such disclosure would otherwise be\nrequired under this Agreement; and provided, further, that no such period or periods\ndescribed in the preceding proviso shall exceed 90days in the aggregate during any period\nof 12 consecutive calendar months. Upon receipt of any such notice, Goldman, Sachs & Co.\nshall cease using the Prospectus or any amendment or supplement thereto in connection with\nSecondary Market Transactions until it receives notice from the Company that it may\n\n\n<\/p>
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resume using such document (or such document as it may be amended or supplemented);\n\n\n\n<\/p>
(f) To make generally available to its securityholders as soon as practicable, but in\nany event not later than sixteen months after the effective date of the Registration\nStatement (as defined in Rule 158(c) under the Act), an earnings statement of the Company\nand its subsidiaries (which need not be audited) complying with Section 11(a) of the Act\nand the rules and regulations of the Commission thereunder (including, at the option of the\nCompany, Rule158);\n\n\n\n<\/p>
(g) During the period beginning from the date hereof and continuing to and including\nthe later of (i)the termination of trading restrictions for the Shares as notified to the\nCompany by you and (ii)the last Time of Delivery for the Shares, not to offer, sell,\ncontract to sell or otherwise dispose of, except as provided hereunder, any securities of\nthe Company that are substantially similar to the Shares, including but not limited to any\nsecurities that are convertible into or exchangeable for, or that represent the right to\nreceive, <\/b>Preferred Shares or <\/b>Shares or any such substantially similar securities (other\nthan pursuant to employee stock option plans existing on, or upon the conversion of\nconvertible or exchangeable securities outstanding as of, the date hereof) without your\nprior written consent;\n\n\n\n<\/p>
(h)\n\nTo use its best efforts to list, subject\nto notice of issuance, <\/b>the Depositary Shares\ncomprising <\/b>the Shares on the New York Stock\nExchange (the \u0093NYSE\u0094);\n\n\n\n<\/p>
(i) To pay the required Commission filing fees relating to the Shares within the time\nrequired by Rule456(b)(1) under the Act without regard to the proviso therein and\notherwise in accordance with Rules 456(b) and 457(r) under the Act; and\n\n\n\n<\/p>
(j) To use the net proceeds received by it from the sale of the Shares pursuant to\nthis Agreement in the manner specified in the Pricing Prospectus under the caption \u0093Use of\nProceeds\u0094.\n\n\n\n<\/p>
5A. The Company agrees with Goldman, Sachs & Co., with respect to each issuance of the Shares:\n\n\n\n<\/p>
(a)To make no amendment or supplement to the Registration Statement, the Base Prospectus or\nthe Prospectus during the Secondary Transactions Period that shall be disapproved by Goldman, Sachs\n& Co. promptly after reasonable notice thereof. The \u0093Secondary Transactions Period\u0094 means the\nperiod beginning on the date hereof and continuing for as long as may be required under applicable\nlaw, in the reasonable judgment of Goldman, Sachs\n\n\n<\/p>
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& Co. after consultation with the Company, in order to offer and sell any such Shares in\nSecondary Market Transactions as contemplated by the Pricing Prospectus;\n\n\n<\/p>
(b)During the Secondary Transactions Period, to furnish to Goldman, Sachs & Co. copies of all\nreports or other communications (financial or other) furnished to stockholders generally, and to\ndeliver to Goldman, Sachs & Co. (i)as soon as they are available, copies of any reports and\nfinancial statements furnished to or filed with the Commission or any national securities exchange\non which the Shares or any class of securities of the Company is listed; and (ii)such additional\ninformation concerning the business and financial condition of the Company as Goldman, Sachs & Co.\nmay from time to time reasonably request (such financial statements to be on a consolidated basis\nto the extent the accounts of the Company and its subsidiaries are consolidated in reports\nfurnished to its stockholders generally or to the Commission); and\n\n\n<\/p>
(c)Each time the Registration Statement, the Base Prospectus or the Prospectus shall be\namended or supplemented during the Secondary Transactions Period, to furnish or cause to be\nfurnished to Goldman, Sachs & Co., upon its request, written opinions of counsel for the Company, a\nletter from the independent accountants who have certified the financial statements included in the\nRegistration Statement as then amended and certificates of officers of the Company, in each case in\nform and substance reasonably satisfactory to Goldman, Sachs & Co., all to the effect specified in\nsubsections (c), (d)and (j), respectively, of Section8 hereof (as modified to relate to the\nRegistration Statement and the Prospectus as then amended or supplemented).\n\n\n\n<\/p>
Notwithstanding the foregoing provisions, the Company may elect, upon notice to Goldman, Sachs\n& Co., not to comply with this Section5A with respect to any Secondary Market Transaction, but\nonly for a period or periods that the Company reasonably determines are necessary in order to avoid\npremature disclosure of material, non-public information, unless, notwithstanding such election,\nsuch disclosure would otherwise be required under this Agreement; and provided, further, that no\nsuch period or periods described in the preceding proviso shall exceed 90days in the aggregate\nduring any period of 12 consecutive calendar months. Upon receipt of any such notice, Goldman,\nSachs & Co. shall cease using the Prospectus, any amendment or supplement thereto in connection\nwith Secondary Market Transactions until it receives notice from the Company that it may resume\nusing such document (or such document as it may be amended or supplemented).\n\n\n<\/p>
6.(a) (i) The Company and each Underwriter agree that the Underwriters may prepare and use\none or more preliminary or final term sheets relating to the Shares containing customary\ninformation;\n\n\n<\/p>
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(ii) Each Underwriter represents that, other than as permitted under subparagraph\n(a)(i) above, it has not made and will not make any offer relating to the Shares that would\nconstitute a \u0093free writing prospectus\u0094 as defined in Rule405 under the Act without the\nprior consent of the Company and Goldman, Sachs & Co. and that ScheduleII(a) hereto is a\ncomplete list of any free writing prospectus for which the Underwriters have received such\nconsent; and\n\n\n\n<\/p>
(iii) The Company represents and agrees that it has not made and will not make any\noffer relating to the Shares that would constitute an Issuer Free Writing Prospectus\nwithout the prior consent of Goldman, Sachs & Co. and that ScheduleII(a) hereto is a\ncomplete list of any Issuer Free Writing Prospectuses for which the Company has received\nsuch consent;\n\n\n\n<\/p>
(b)The Company has complied and will comply with the requirements of Rule433 under the Act\napplicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or\nretention where required and legending; and\n\n\n<\/p>
(c)The Company agrees that if at any time following issuance of an Issuer Free Writing\nProspectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus\nwould conflict with the information in the Registration Statement, the Pricing Prospectus or the\nProspectus or would include an untrue statement of a material fact or omit to state any material\nfact necessary in order to make the statements therein, in the light of the circumstances then\nprevailing, not misleading, the Company will give prompt notice thereof to Goldman, Sachs & Co.\nand, if requested by Goldman, Sachs & Co., will prepare and furnish without charge to each\nUnderwriter (or, in the case of any Secondary Market Transaction, to Goldman, Sachs & Co.) an\nIssuer Free Writing Prospectus or other document which will correct such conflict, statement or\nomission; provided, however, that this representation and warranty shall not apply to any\nstatements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in\nconformity with information furnished in writing to the Company by an Underwriter through Goldman,\nSachs & Co. expressly for use therein.\n\n\n<\/p>
7.The Company covenants and agrees with the several Underwriters that the Company will pay or\ncause to be paid the following: (i)the fees, disbursements and expenses of the Company\u0092s counsel\nand accountants in connection with the registration of the Shares under the Act and all other\nexpenses in connection with the preparation, printing, reproduction and filing of the Registration\nStatement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and\nthe Prospectus and amendments and supplements thereto and the mailing and delivering of copies\nthereof to the\n\n\n\n<\/p>
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Underwriters and dealers; (ii)the cost of printing or producing any Agreement among\nUnderwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any\ncompilations thereof) and any other documents in connection with the offering, purchase, sale and\ndelivery of the Shares; (iii)all expenses in connection with the qualification of the Shares for\noffering and sale under state securities laws as provided in Section 5(d) hereof, including the\nfees and disbursements of counsel for the Underwriters in connection with such qualification and in\nconnection with the Blue Sky survey; (iv)any fees charged by securities rating services for rating\nthe Shares; (v)any filing fees incident to, and the fees and disbursements of counsel for the\nUnderwriters in connection with, any required review by the National Association of Securities\nDealers, Inc. of the terms of the sale of the Shares; (vi)any fees and expenses in connection with\nthe listing of the Shares; (vii)the cost of preparing the Shares; (vii)the costs and charges of\nany transfer agent or registrar or dividend distributing agent; and (viii)all other costs and\nexpenses incident to the performance of its obligations hereunder and under any Additional Shares\nOption that are not otherwise specifically provided for in this Section. It is understood,\nhowever, that, except as provided in this Section, and Sections9 and 12 hereof, the Underwriters\nwill pay all of their own costs and expenses, including the fees of their counsel, transfer taxes\non resale of any of the Shares by them, the cost of preparing and distributing any term sheet\nprepared by any Underwriter, and any advertising expenses connected with any offers they may make.\n\n\n\n<\/p>
8.The obligations of the Underwriters hereunder, as to the Shares to be purchased at each\nTime of Delivery, shall be subject, in your discretion, to the condition that all representations\nand warranties and other statements of the Company herein are, at and as of such Time of Delivery,\ntrue and correct, the condition that the Company shall have performed all of its obligations\nhereunder theretofore to be performed, and the following additional conditions:\n\n\n<\/p>
(a)The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the\nAct within the applicable time period prescribed for such filing by the rules and regulations under\nthe Act and in accordance with Section 5(a) hereof; any final term sheet contemplated by Section\n5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d)\nunder the Act shall have been filed with the Commission within the applicable time periods\nprescribed for such filings by Rule433; no stop order suspending the effectiveness of the\nRegistration Statement or any part thereof shall have been issued and no proceeding for that\npurpose shall have been initiated or threatened by the Commission and no notice of objection of the\nCommission to the use of the Registration Statement or any post-effective amendment thereto\npursuant to Rule401(g)(2) under the Act shall have been received; no stop order suspending or\npreventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been\ninitiated or threatened by the\n\n\n<\/p>
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Commission; and all requests for additional information on the part of the Commission shall\nhave been complied with to your reasonable satisfaction;\n\n\n\n<\/p>
(b)Counsel for the Underwriters shall have furnished to you such written opinion and letter,\ndated such Time of Delivery, to the effect set forth in Annex I hereto;\n\n\n<\/p>
(c)A General Counsel or Associate General Counsel for the Company shall have furnished to you\nhis or her written opinion, dated such Time of Delivery, in form and substance satisfactory to you,\nto the effect set forth in Annex II hereto;\n\n\n<\/p>
(d)On the date hereof at a time prior to the execution of this Agreement and at such Time of\nDelivery, the independent accountants shall have furnished to you a letter, dated the date hereof,\nand a letter, dated such Time of Delivery, respectively, to the effect set forth in Annex III\nhereto, and with respect to such letter dated such Time of Delivery, as to such other matters as\nyou may reasonably request, and in form and substance satisfactory to Goldman, Sachs & Co.;\n\n\n<\/p>
(e)(i) Neither the Company nor any of its Significant Subsidiaries shall have sustained since\nthe date of the latest audited financial statements included or incorporated by reference in the\nPricing Prospectus any loss or interference with its business from fire, explosion, flood or other\ncalamity, whether or not covered by insurance, or from any labor dispute or court or governmental\naction, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and\n(ii)since the respective dates as of which information is given in the Pricing Prospectus there\nshall not have been any change in the capital stock or long-term debt of the Company or any of its\nSignificant Subsidiaries or any change, or any development involving a prospective change, in or\naffecting the general affairs, management, financial position, stockholders\u0092 equity or results of\noperations of the Company and its Significant Subsidiaries, otherwise than as set forth or\ncontemplated in the Pricing Prospectus, the effect of which, in any such case described in clause\n(i)or (ii), is in the judgment of Goldman, Sachs & Co. so material and adverse as to make it\nimpracticable or inadvisable to proceed with the public offering or the delivery of the Shares on\nthe terms and in the manner contemplated in the Prospectus;\n\n\n\n<\/p>
(f)On or after the Applicable Time (i)no downgrading shall have occurred in the rating\naccorded the Company\u0092s debt securities or preferred stock by any \u0093nationally recognized statistical\nrating organization\u0094, as that term is defined by the Commission for purposes of Rule436(g)(2)\nunder the Act, and (ii)no such organization shall have publicly announced that it has under\nsurveillance or review, with possible negative implications, its rating of any of the Company\u0092s\ndebt securities or preferred stock;\n\n\n<\/p>
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(g)On or after the Applicable Time there shall not have occurred any of the following: (i)a\nsuspension or material limitation in trading in securities generally on the New York Stock\nExchange; (ii)a suspension or material limitation in trading in the Company\u0092s securities on the\nNew York Stock Exchange; (iii)a general moratorium on commercial banking activities declared by\neither Federal or New York State authorities or a material disruption in commercial banking or\nsecurities settlement or clearance services in the United States; (iv)the outbreak or escalation\nof hostilities involving the United States or the declaration by the United States of a national\nemergency or war or (v)the occurrence of any other calamity or crisis or any change in financial,\npolitical or economic conditions in the United States or elsewhere, if the effect of any such event\nspecified in clause (iv)or (v)in the judgment of Goldman, Sachs & Co. makes it impracticable or\ninadvisable to proceed with the public offering or the delivery of the Shares being delivered at\nsuch Time of Delivery on the terms and in the manner contemplated in the Prospectus;\n\n\n<\/p>
(h)The <\/b>Depositary Shares comprising the <\/b>Shares being delivered at each Time of Delivery\nshall have been duly listed, subject to notice of issuance, on the NYSE, or application thereto for\nsuch listing shall have been made;\n\n\n\n<\/p>
(i)The Company shall have complied with the provisions of Section 5(e) hereof with respect to\nthe furnishing of prospectuses on the New York Business Day next succeeding the date of this\nAgreement; and\n\n\n<\/p>
(j)The Company shall have furnished or caused to be furnished to you at such Time of Delivery\ncertificates of officers of the Company satisfactory to you as to the accuracy of the\nrepresentations and warranties of the Company herein at and as of such time, as to the performance\nby the Company of all of its obligations hereunder to be performed at or prior to such time, as to\nthe matters set forth in subsections (a)and (e)of this Section and as to such other matters as\nyou may reasonably request.\n\n\n<\/p>
9.(a) The Company will indemnify and hold harmless each Underwriter against any losses,\nclaims, damages or liabilities, joint or several, to which such Underwriter may become subject,\nunder the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in\nrespect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of\na material fact contained in the Registration Statement, the Base Prospectus, any Preliminary\nProspectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any\nIssuer Free Writing Prospectus or any \u0093issuer information\u0094 filed or required to be filed pursuant\nto Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to\nstate therein a material fact required to be stated therein or necessary to make the statements\ntherein not misleading, and will reimburse each Underwriter for any legal or other expenses\nreasonably incurred by such Underwriter in connection\n\n\n<\/p>
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with investigating or defending any such action or claim as such expenses are incurred;\nprovided, however, that the Company shall not be liable in any such case to the extent that any\nsuch loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged\nuntrue statement or omission or alleged omission made in the Registration Statement, the Base\nProspectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment\nor supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity\nwith written information furnished to the Company by any Underwriter through Goldman, Sachs & Co.\nexpressly for use therein.\n\n\n<\/p>
(b)Each Underwriter will indemnify and hold harmless the Company against any losses, claims,\ndamages or liabilities to which the Company may become subject, under the Act or otherwise, insofar\nas such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are\nbased upon an untrue statement or alleged untrue statement of a material fact contained in the\nRegistration Statement, the Base Prospectus, any Preliminary Prospectus, the Pricing Prospectus or\nthe Prospectus, or any amendment or supplement thereto or any Issuer Free Writing Prospectus, or\narise out of or are based upon the omission or alleged omission to state therein a material fact\nrequired to be stated therein or necessary to make the statements therein not misleading, in each\ncase to the extent, but only to the extent, that such untrue statement or alleged untrue statement\nor omission or alleged omission was made in the Registration Statement, the Base Prospectus, any\nPreliminary Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or\nsupplement thereto or any Issuer Free Writing Prospectus, in reliance upon and in conformity with\nwritten information furnished to the Company by such Underwriter through Goldman, Sachs & Co.\nexpressly for use therein; and will reimburse the Company for any legal or other expenses\nreasonably incurred by the Company in connection with investigating or defending any such action or\nclaim as such expenses are incurred.\n\n\n<\/p>
(c)Promptly after receipt by an indemnified party under subsection (a)or (b)above of notice\nof the commencement of any action, such indemnified party shall, if a claim in respect thereof is\nto be made against the indemnifying party under such subsection, notify the indemnifying party in\nwriting of the commencement thereof; but the omission so to notify the indemnifying party shall not\nrelieve it from any liability which it may have to any indemnified party otherwise than under such\nsubsection. In case any such action shall be brought against any indemnified party and it shall\nnotify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled\nto participate therein and, to the extent that it shall wish, jointly with any other indemnifying\nparty similarly notified, to assume the defense thereof, with counsel satisfactory to such\nindemnified party (who shall not, except with the consent of the indemnified party, be counsel to\nthe indemnifying party), and, after notice from\n\n\n<\/p>
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\n\n\n
the indemnifying party to such indemnified party of its election so to assume the defense\nthereof, the indemnifying party shall not be liable to such indemnified party under such subsection\nfor any legal expenses of other counsel or any other expenses, in each case subsequently incurred\nby such indemnified party, in connection with the defense thereof other than reasonable costs of\ninvestigation. No indemnifying party shall, without the written consent of the indemnified party,\neffect the settlement or compromise of, or consent to the entry of any judgment with respect to,\nany pending or threatened action or claim in respect of which indemnification or contribution may\nbe sought hereunder (whether or not the indemnified party is an actual or potential party to such\naction or claim) unless such settlement, compromise or judgment (i)includes an unconditional\nrelease of the indemnified party from all liability arising out of such action or claim and (ii)\ndoes not include a statement as to or an admission of fault, culpability or a failure to act, by or\non behalf of any indemnified party.\n\n\n<\/p>
(d)If the indemnification provided for in this Section9 is unavailable to or insufficient to\nhold harmless an indemnified party under subsection (a)or (b)above in respect of any losses,\nclaims, damages or liabilities (or actions in respect thereof) referred to therein, then each\nindemnifying party shall contribute to the amount paid or payable by such indemnified party as a\nresult of such losses, claims, damages or liabilities (or actions in respect thereof) in such\nproportion as is appropriate to reflect the relative benefits received by the Company on the one\nhand and the Underwriters on the other from the offering of the Shares. If, however, the\nallocation provided by the immediately preceding sentence is not permitted by applicable law or if\nthe indemnified party failed to give the notice required under subsection (c)above, then each\nindemnifying party shall contribute to such amount paid or payable by such indemnified party in\nsuch proportion as is appropriate to reflect not only such relative benefits but also the relative\nfault of the Company on the one hand and the Underwriters on the other in connection with the\nstatements or omissions which resulted in such losses, claims, damages or liabilities (or actions\nin respect thereof), as well as any other relevant equitable considerations. The relative benefits\nreceived by the Company on the one hand and the Underwriters on the other shall be deemed to be in\nthe same proportion as the total net proceeds from the offering (before deducting expenses)\nreceived by the Company bear to the total underwriting discounts and commissions received by the\nUnderwriters, in each case as set forth in the table on the cover page of the Prospectus. The\nrelative fault shall be determined by reference to, among other things, whether the untrue or\nalleged untrue statement of a material fact or the omission or alleged omission to state a material\nfact relates to information supplied by the Company on the one hand or the Underwriters on the\nother and the parties\u0092 relative intent, knowledge, access to information and opportunity to correct\nor prevent such statement or omission. The Company and the Underwriters agree that it would not be\njust and equitable if contribution pursuant to this subsection (d)were determined by pro rata\nallocation (even if the Underwriters were treated as one entity for such purpose)\n\n\n\n<\/p>
-20-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
or by any other method of allocation which does not take account of the equitable\nconsiderations referred to above in this subsection (d). The amount paid or payable by an\nindemnified party as a result of the losses, claims, damages or liabilities (or actions in respect\nthereof) referred to above in this subsection (d)shall be deemed to include any legal or other\nexpenses reasonably incurred by such indemnified party in connection with investigating or\ndefending any such action or claim. Notwithstanding the provisions of this subsection (d), no\nUnderwriter shall be required to contribute any amount in excess of the amount by which the total\nprice at which the Shares underwritten by it and distributed to the public were offered to the\npublic exceeds the amount of any damages which such Underwriter has otherwise been required to pay\nby reason of such untrue or alleged untrue statement or omission or alleged omission. No person\nguilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be\nentitled to contribution from any person who was not guilty of such fraudulent misrepresentation.\nThe Underwriters\u0092 obligations in this subsection (d)to contribute are several in proportion to\ntheir respective underwriting obligations and not joint.\n\n\n<\/p>
(e)The obligations of the Company under this Section9 shall be in addition to any liability\nwhich the Company may otherwise have and shall extend, upon the same terms and conditions, to each\nperson, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer\naffiliate of any Underwriter; and the obligations of the Underwriters under this Section9 shall be\nin addition to any liability which the respective Underwriters may otherwise have and shall extend,\nupon the same terms and conditions, to each officer and director of the Company and to each person,\nif any, who controls the Company within the meaning of the Act.\n\n\n\n<\/p>
10.(a)If any Underwriter shall default in its obligation to purchase the Shares that it has\nagreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or\nanother party or other parties to purchase such Shares on the terms contained herein. If within\nthirty-six hours after such default by any Underwriter you do not arrange for the purchase of such\nShares, then the Company shall be entitled to a further period of thirty-six hours within which to\nprocure another party or other parties satisfactory to you to purchase such Shares on such terms.\nIn the event that, within the respective prescribed periods, you notify the Company that you have\nso arranged for the purchase of such Shares, or the Company notifies you that it has so arranged\nfor the purchase of such Shares, you or the Company shall have the right to postpone such Time of\nDelivery for a period of not more than seven days, in order to effect whatever changes may thereby\nbe made necessary in the Registration Statement or the Prospectus, or in any other documents or\narrangements, and the Company agrees to file promptly any amendments or supplements to the\nRegistration Statement or the Prospectus that in your opinion may thereby be made necessary. The\nterm \u0093Underwriter\u0094 as used in this Agreement shall include\n\n\n<\/p>
-21-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
any person substituted under this Section with like effect as if such person had originally\nbeen a party to this Agreement with respect to such Shares.\n\n\n\n<\/p>
(b)If, after giving effect to any arrangements for the purchase of the Shares of a defaulting\nUnderwriter or Underwriters by you and the Company as provided in subsection (a)above, the\naggregate number of such Shares that remains unpurchased does not exceed one eleventh of the\naggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall\nhave the right to require each non-defaulting Underwriter to purchase the number of Shares that\nsuch Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require\neach non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares that\nsuch Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or\nUnderwriters for which such arrangements have not been made; but nothing herein shall relieve a\ndefaulting Underwriter from liability for its default.\n\n\n<\/p>
(c)If, after giving effect to any arrangements for the purchase of the Shares of a defaulting\nUnderwriter or Underwriters by you and the Company as provided in subsection (a)above, the\naggregate number of such Shares that remains unpurchased exceeds one-eleventh of the aggregate\nnumber of all Shares to be purchased at such respective Time of Delivery, or if the Company shall\nnot exercise the right described in subsection (b)above to require non-defaulting Underwriters to\npurchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect\nto the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company\nto sell the Optional Shares) shall thereupon terminate, without liability on the part of any\nnon-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and\nthe Underwriters as provided in Section7 hereof and the indemnity and contribution agreements in\nSection9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its\ndefault.\n\n\n<\/p>
11. The respective indemnities, agreements, representations, warranties and other statements\nof the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf\nof them, respectively, pursuant to this Agreement, shall remain in full force and effect,\nregardless of any investigation (or any statement as to the results thereof) made by or on behalf\nof any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or\ndirector or controlling person of the Company, and shall survive delivery of and payment for the\nShares.\n\n\n<\/p>
12. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in\nsubsection (a)of Section9 hereof, the representations and warranties in subsections (b)and (c)\nof Section1 hereof and any representation or warranty as to the accuracy of the Registration\nStatement or any Prospectus contained in any certificate furnished by the Company\n\n\n\n<\/p>
-22-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
pursuant to Section8 hereof, insofar as they may constitute a basis for indemnification for\nliabilities (other than payment by the Company of expenses incurred or paid in the successful\ndefense of any action, suit or proceeding) arising under the Act, shall not extend to the extent of\nany interest therein of a controlling person or partner of an Underwriter who is a director or\nofficer of the Company who signed the Registration Statement or a controlling person of the Company\nwhen the Registration Statement has become effective, except in each case to the extent that an\ninterest of such character shall have been determined by a court of appropriate jurisdiction as not\nagainst public policy as expressed in the Act. Unless in the opinion of counsel for the Company\nthe matter has been settled by controlling precedent, the Company will, if a claim for such\nindemnification is asserted, submit to a court of appropriate jurisdiction the question of whether\nsuch interest is against public policy as expressed in the Act and will be governed by the final\nadjudication of such issue.\n\n\n<\/p>
13. If this Agreement or the Additional Shares Options shall be terminated pursuant to Section\n10 hereof, the Company shall not then be under any liability to any Underwriter with respect to the\nFirm Shares or Optional Shares with respect to which this Agreement or the Additional Shares\nOptions, as the case may be, shall have been terminated, except as provided in Sections7 and 9\nhereof; but, if for any other reason, any Shares are not delivered by or on behalf of the Company\nas provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket\nexpenses approved in writing by you, including fees and disbursements of counsel, reasonably\nincurred by the Underwriters in making preparations for the purchase, sale and delivery of the\nShares not so delivered, but the Company shall then be under no further liability to any\nUnderwriter with respect to such Shares except as provided in Sections7 and 9 hereof.\n\n\n\n<\/p>
14. In all dealings hereunder, Goldman, Sachs & Co. (and only Goldman, Sachs & Co.) shall act\non behalf of each of the Underwriters (including with respect to any determination as to whether\nany condition to the obligations of the Underwriters has been satisfied, any representation or\nagreement of the Company has been complied with or any such condition, representation or agreement\nmay be waived), and the parties hereto shall be entitled to act and rely upon any statement,\nrequest, notice or agreement on behalf of any Underwriter made or given by Goldman, Sachs & Co.\n\n\n<\/p>
All statements, requests, notices and agreements hereunder shall be in writing, and if to the\nUnderwriters shall be delivered or sent by mail, telex or facsimile transmission to Goldman, Sachs\n& Co. as the representatives at One New York Plaza, 42nd<\/sup> Floor, New York, New York\n10004, Attention: Registration Department; and if to the Company shall be delivered or sent by\nmail, telex or facsimile transmission to the address of the Company set forth in the Registration\nStatement, Attention: Secretary; provided, however, that any notice to an\n\n\n<\/p>
-23-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or\nfacsimile transmission to such Underwriter at its address set forth in its Underwriters\u0092\nQuestionnaire, or telex constituting such Questionnaire, which address will be supplied to the\nCompany by you upon request. Any such statements, requests, notices or agreements shall take\neffect upon receipt thereof.\n\n\n<\/p>
15.This Agreement shall be binding upon, and inure solely to the benefit of, the\nUnderwriters, the Company and, to the extent provided in Sections9 and 11 hereof, the officers and\ndirectors of the Company and each person who controls the Company or any Underwriter, and their\nrespective heirs, executors, administrators, successors and assigns, and no other person shall\nacquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares\nfrom any Underwriter shall be deemed a successor or assign by reason merely of such purchase.\n\n\n<\/p>
16.Time shall be of the essence of this Agreement. As used herein, the term \u0093business day\u0094\n\nshall mean any day when the Commission\u0092s office in Washington, D.C. is open for business.\n\n\n<\/p>
17. The Company acknowledges and agrees that (i)the purchase and sale of the Shares pursuant\nto this Agreement is an arm\u0092s-length commercial transaction between the Company, on the one hand,\nand the several Underwriters, on the other, (ii)in connection therewith and with the process\nleading to such transaction each Underwriter is acting solely as a principal and not the agent or\nfiduciary of the Company, (iii)no Underwriter has assumed an advisory or fiduciary responsibility\nin favor of the Company with respect to the offering contemplated hereby or the process leading\nthereto (irrespective of whether such Underwriter has advised or is currently advising the Company\non other matters) or any other obligation to the Company except the obligations expressly set forth\nin this Agreement and (iv)the Company has consulted its own legal and financial advisors to the\nextent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or\nany of them, has rendered advisory services of any nature or respect, or owes a fiduciary or\nsimilar duty to the Company, in connection with such transaction or the process leading thereto.\n\n\n<\/p>
18. This Agreement supersedes all prior agreements and understandings (whether written or\noral) between the Company and the Underwriters, or any of them, with respect to the subject matter\nhereof.\n\n\n<\/p>
19.This Agreement shall be governed by and construed in accordance with the laws of the State\nof New York.<\/b>\n\n<\/p>
20.The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent\npermitted by applicable law, any and all right to trial\n\n\n<\/p>
-24-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
by jury in any legal proceeding arising out of or relating to this Agreement or the\ntransactions contemplated hereby.\n\n\n<\/p>
21.This Agreement may be executed by any one or more of the parties hereto in any number of\ncounterparts, each of which shall be deemed to be an original, but all such respective counterparts\nshall together constitute one and the same instrument.\n\n\n<\/p>
22.Notwithstanding anything herein to the contrary, the Company is authorized to disclose to\nany persons the U.S. federal and state income tax treatment and tax structure of the potential\ntransaction and all materials of any kind (including tax opinions and other tax analyses) provided\nto the Company relating to that treatment and structure, without the Underwriters imposing any\nlimitation of any kind. However, any information relating to the tax treatment and tax structure\nshall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to\nenable any person to comply with securities laws. For this purpose, \u0093tax structure\u0094 is limited to\nany facts that may be relevant to that treatment.\n\n\n\n<\/p>
-25-\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
If the foregoing is in accordance with your understanding, please sign and return to us four\ncounterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,\nthis letter and such acceptance hereof shall constitute a binding agreement between each of the\nUnderwriters and the Company. It is understood that your acceptance of this letter on behalf of\neach of the Underwriters is pursuant to the authority set forth in a form of Agreement among\nUnderwriters, the form of which shall be submitted to the Company for examination upon request, but\nwithout warranty on your part as to the authority of the signers thereof.\n\n\n<\/p>\n\n    \n    \n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n\n    <\/td>\n    <\/td>\n<\/tr>\n
<\/td>\n    Very truly yours,
\n
\n
\nThe Goldman Sachs Group, Inc.
\n<\/td>\n    		<\/td>\n\n<\/tr>
<\/td>\n    By:<\/td>\n    <\/td>\n    <\/td>\n<\/tr>
<\/td>\n    <\/td>\n    Name:<\/td>\n\n    <\/td>\n    <\/td>\n<\/tr>
<\/td>\n    <\/td>\n    Title:<\/td>\n    <\/td>\n    <\/td>\n<\/tr>\n\n
<\/td>\n<\/tr>\n<\/table>\n\n\n
Accepted as of the date hereof:\n\n<\/p>
\n\n\n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n\n\n\n\n
\n<\/div><\/td>\n    
<\/td>\n    <\/td>\n<\/tr>\n
<\/div><\/td>\n\n    
<\/td>\n    <\/td>\n<\/tr>\n
(Goldman, Sachs & Co.)<\/div><\/td>\n    
<\/td>\n    <\/td>\n<\/tr>\n\n\n\n\n
On behalf of each of the Underwriters\n\n\n<\/p>
-26-\n\n\n<\/p>
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
SCHEDULE I<\/b>\n\n<\/p>
\n\n\n    \n\n    \n\n    \n\n    \n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n\n
 <\/td>\n     <\/td>\n     <\/td>\n     <\/td>\n    Maximum Number of<\/b><\/td>\n<\/tr>\n
Underwriters<\/b><\/td>\n     <\/td>\n    Number of Firm Shares to<\/b><\/td>\n     <\/td>\n    Optional Shares to be<\/b><\/td>\n<\/tr>\n
 <\/td>\n     <\/td>\n    be Purchased<\/b><\/td>\n     <\/td>\n    Purchased<\/b><\/td>\n<\/tr>\n\n\n
Goldman, Sachs & Co.<\/div><\/td>\n    
<\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n\n<\/tr>\n
<\/b>Names of the other underwriters<\/b><\/div><\/td>\n    
<\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n<\/tr>\n
Total\n\n<\/div><\/td>\n    
<\/td>\n    \n<\/td>\n    <\/td>\n    <\/td>\n<\/tr>\n
<\/div><\/td>\n    
<\/td>\n    <\/td>\n\n    <\/td>\n    <\/td>\n<\/tr>\n\n\n\n\n
S-I-1\n\n\n<\/p>
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n\n
SCHEDULE II<\/b>\n\n\n<\/p>
\n\n\n    \n    \n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n\n\n\n\n
(a)\n<\/div><\/td>\n    
<\/td>\n    Issuer Free Writing Prospectuses:<\/td>\n<\/tr>\n
<\/div><\/td>\n\n    
<\/td>\n    <\/td>\n<\/tr>\n
\n<\/div><\/td>\n    
<\/td>\n    Other Free Writing Prospectuses:<\/td>\n<\/tr>\n
<\/div><\/td>\n\n    
<\/td>\n    <\/td>\n<\/tr>\n
(b)\n<\/div><\/td>\n    
<\/td>\n    Additional Documents Incorporated by Reference:<\/td>\n<\/tr>\n\n\n\n\n\n
S-II-1\n\n\n<\/p>
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
SCHEDULE III<\/b>\n\n\n\n<\/p>
The Goldman Sachs Group, Inc.<\/b>\n\n\n\n<\/p>
<\/b>To be modified as appropriate and completed prior to the execution of this Agreement<\/b>\n\n\n<\/p>
Title of Shares:<\/b>\n\n\n\n<\/p>
Depositary:<\/b>\n\n\n<\/p>
Number of Depositary Shares:<\/b>\n\n\n\n<\/p>
Number of Preferred Shares:<\/b>\n\n\n\n<\/p>
Initial Offering Price to Public:<\/b>\n\n\n\n<\/p>
Purchase Price by Underwriters:<\/b>\n\n\n\n<\/p>
Form of Shares:<\/b>\n\n\n\n<\/p>
Specified Funds for Payment of Purchase Price:<\/b>\n\n\n<\/p>
First Time of Delivery:<\/b>\n\n\n\n<\/p>
Dividends:<\/b>\n\n\n\n<\/p>
Dividend Payment Dates:<\/b>\n\n\n\n<\/p>
Redemption:<\/b>\n\n\n\n<\/p>
Liquidation Distribution:<\/b>\n\n\n\n<\/p>
Voting Rights:<\/b>\n\n\n\n<\/p>
Maturity Date:<\/b>\n\n\n<\/p>
Preemptive and Conversion Rights:<\/b>\n\n\n\n<\/p>
Listing:<\/b>\n\n\n\n<\/p>
Transfer Agent, Registrar, Depositary and Calculation Agent:<\/b>\n\n\n\n<\/p>
Closing Location:<\/b>\n\n\n\n<\/p>
Names and Addresses of Representatives:<\/b>\n\n\n\n<\/p>
S-III-1\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
ANNEX I<\/b>\n\n\n<\/p>
Form of Opinion of Counsel to the Underwriters<\/u><\/b>\n\n\n\n\n<\/p>
<\/b>date<\/b>\n\n\n<\/p>
Goldman, Sachs & Co.,
\n\nAs Representatives of the
\nSeveral Underwriters,
\nc\/o Goldman, Sachs & Co.,
\n85 Broad Street
\nNew York, New York 10004.\n\n\n<\/p>
Ladies and Gentlemen:\n\n\n<\/p>
We refer to the several purchases today by you and the other Underwriters named in ScheduleI\nto the Underwriting Agreement, dated <\/u> <\/u>, 20<\/u> (the \u0093Underwriting Agreement\u0094), between The\nGoldman Sachs Group, Inc., a Delaware corporation (the \u0093Company\u0094), and you, as Representatives of\nthe several Underwriters named therein (the \u0093Underwriters\u0094), of <\/u> <\/b>depositary shares (the\n\n\u0093Depositary Shares\u0094), each representing one <\/u> of a share of<\/b>Title of the Preferred Shares<\/b>\n(the \u0093<\/b>Preferred <\/b>Shares\u0094) of the Company. <\/b>The Depositary Shares are being issued pursuant to a\ndeposit agreement (the \u0093Deposit Agreement\u0094), dated as of <\/u> <\/u>, 20<\/u>, between the Company and\n\n<\/u>, as depositary (the \u0093Depositary\u0094). <\/b>The Preferred Shares and the Depositary Shares\nrepresenting the Preferred Shares, collectively, are herein called the \u0093Shares\u0094. The Depositary\nShares are evidenced by depositary receipts (\u0093Depositary Receipts\u0094) issued pursuant to the Deposit\nAgreement.<\/b>\n\n\n<\/p>
In connection with the several purchases described above, we, as counsel for the Underwriters,\nhave examined such corporate records, certificates and other documents, and such questions of law,\nas we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of\nsuch examination, we advise you that, in our opinion:\n\n\n<\/p>
(1) The Company has been duly incorporated and is an existing corporation in good standing\nunder the laws of the State of Delaware.\n\n\n<\/p>
(2) All regulatory consents, authorizations, approvals and filings required to be obtained or\nmade by the Company under the Federal laws of the United States, the laws of the State of New York\nand the General Corporation Law of the State of Delaware for the issuance, sale and delivery of the\nShares by the Company to the Underwriters have been obtained or made.\n\n\n\n<\/p>
A-I-1\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n<\/p>
\n\n
(3) The issuance of the Shares in accordance with the Deposit Agreement and the sale of the\nShares by the Company to the Underwriters pursuant to the Underwriting Agreement do not, and the\nperformance by the Company of its obligations under the Shares<\/b>, the Deposit Agreement<\/b>, and the\nUnderwriting Agreement and the consummation of the transactions therein contemplated, in each case\nwith respect to the Shares, will not, (a)violate the Restated Certificate of\nIncorporation or the Amended and Restated By-laws of the Company, (b)result in a default under or\nbreach of the agreements filed as exhibits nos. \u0095 through \u0095, inclusive, to the Company\u0092s Annual\nReport on Form 10-K for the fiscal year ended \u0095, 20.. <\/b>and exhibits nos. \u0095 through \u0095, inclusive, to\nthe Company\u0092s Quarterly Report on Form 10-Q for the fiscal quarter ended \u0095, 20.. <\/b>and exhibit<\/b>s<\/b>\n\nno<\/b>s<\/b>. \u0095 to the Company\u0092s Current Report on Form 8-K filed \u0095, 20.. <\/b>or (c)violate any Federal law\nof the United States or law of the State of New York applicable to the Company; provided<\/u>,\nhowever<\/u>, that for the purposes of this paragraph (3), we express no opinion with respect to\nFederal or state securities laws, fraudulent transfer laws, other antifraud laws and the Employee\nRetirement Income Security Act of 1974 and related laws; and provided<\/u>, further<\/u>,\nthat insofar as the performance by the Company of its obligations under the Shares<\/b>, the Deposit\nAgreement <\/b>and the Underwriting Agreement is concerned, we express no opinion as to bankruptcy,\ninsolvency, reorganization, moratorium and similar laws of general applicability relating to or\naffecting creditors\u0092 rights.\n\n\n\n<\/p>
(4) The Underwriting Agreement has been duly authorized, executed and delivered by the\nCompany.\n\n\n<\/p>
(5) The <\/b>Preferred <\/b>Shares have been duly authorized and validly issued and are fully paid\nand nonassessable.\n\n\n<\/p>
(6) <\/b>The Deposit Agreement has been duly authorized, executed and delivered by the Company\nand constitutes a valid and legally binding agreement of the Company enforceable in accordance with\nits terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and\nsimilar laws of general applicability relating to or affecting creditors\u0092 rights and to general\nequity principles. We express no opinion, however, as to the indemnification provisions contained\nin Section5.6 of the Deposit Agreement.\n\n\n<\/p>
(7) Upon due issuance by the Depositary of the Depositary Receipts against the deposit of the\nPreferred Shares in accordance with the provisions of the Deposit Agreement, the Depositary\nReceipts will entitle the persons in whose names the Depositary Receipts are registered to the\nrights specified therein and in the Deposit Agreement, subject to bankruptcy, insolvency,\nfraudulent transfer, reorganization, moratorium and similar laws of general applicability relating\nto or affecting creditors\u0092 rights and to general equity principles.<\/b>\n\n\n<\/p>
A-I-2\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
(<\/b>8<\/b>) The Company is not, and immediately after giving effect to the offering and sale of the\nShares will not be, an \u0093investment company\u0094 as such term is defined in the Investment Company Act\nof 1940.\n\n\n\n<\/p>
The foregoing opinion is limited to the Federal laws of the United States, the laws of the\nState of New York and the General Corporation Law of the State of Delaware, and we are expressing\nno opinion as to the effect of the laws of any other jurisdiction.\n\n\n<\/p>
We have relied as to certain matters upon information obtained from public officials, officers\nof the Company and other sources believed by us to be responsible, and we have assumed <\/b>that the\nDeposit Agreement has been duly authorized, executed and delivered by the Depositary, that the\ncertificate evidencing Preferred Shares has been deposited with the Depositary in accordance with\nthe Deposit Agreement, <\/b>that the certificates evidencing the <\/b>Preferred <\/b>Shares <\/b>and the Depositary\nReceipts <\/b>conform to the forms thereof examined by us, <\/b>that the certificates evidencing the\nDepositary Receipts have been duly executed and delivered by one of the Depositary\u0092s authorized\nofficers, <\/b>that the certificate evidencing the <\/b>Preferred <\/b>Shares has been duly countersigned by a\ntransfer agent and duly registered by a registrar of the Preferred Shares, <\/b>that the Depositary\nReceipts, if executed by the Depositary, have been duly countersigned by a registrar of the\nDepositary Receipts <\/b>and that the signatures on all documents examined by us are genuine,\nassumptions which we have not independently verified.\n\n\n\n<\/p>\n\n    \n    \n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n    <\/td>\n<\/tr>\n
<\/td>\n    Very truly yours,
\n\n<\/td>\n    		<\/td>\n<\/tr>
<\/td>\n    <\/td>\n    <\/td>\n<\/tr>
<\/td>\n    <\/td>\n    <\/td>\n\n<\/tr>
<\/td>\n    <\/td>\n    <\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\n\n
A-I-3\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
Form of Letter of Counsel to the Underwriters<\/u><\/b>\n\n\n\n<\/p>
<\/b>date<\/b>\n\n\n<\/p>
Goldman, Sachs & Co.,
\n\nAs Representatives of the
\nSeveral Underwriters,
\nc\/o Goldman, Sachs & Co.,
\n85 Broad Street,
\nNew York, New York 10004.\n\n\n<\/p>
Ladies and Gentlemen:\n\n\n<\/p>
This is with reference to the registration under the Securities Act of 1933 (the \u0093Securities\nAct\u0094) and offering of <\/u> <\/b>depositary shares (the \u0093Depositary Shares\u0094), each\nrepresenting one\n\n<\/u> of a share of <\/b>Title of Preferred Shares <\/b>(the \u0093<\/b>Preferred <\/b>Shares\u0094) of The\nGoldman Sachs Group, Inc. (the \u0093Company\u0094). <\/b>The Depositary Shares are being issued pursuant a\ndeposit agreement (the \u0093Deposit Agreement\u0094), dated as of <\/u> <\/u>, 20<\/u>, between the Company and\n\n<\/u>, as depositary. The Preferred Shares and the Depositary Shares representing the Preferred\nShares, collectively, are herein called the \u0093Shares\u0094. <\/b>The Registration Statement relating to the\nShares (File No.333-<\/u>) was filed on Form S-3 in accordance with procedures of the Securities\nand Exchange Commission (the \u0093Commission\u0094) permitting a delayed or continuous offering of\nsecurities pursuant thereto and, if appropriate, a post-effective amendment or prospectus\nsupplement that provides information relating to the terms of the securities and the manner of\ntheir distribution.\n\n\n<\/p>
The Shares have been\noffered by the Prospectus dated <\/u>\n<\/u>,\n20<\/u> (the \u0093Base Prospectus\u0094),\nas supplemented by the Prospectus Supplement dated <\/u> <\/u>, 20<\/u> (the \u0093Prospectus Supplement\u0094),\nwhich updates or supplements certain information contained in the Base Prospectus. The Base\nProspectus, as so supplemented by the Prospectus Supplement, does not necessarily contain a current\ndescription of the Company\u0092s business and affairs since, pursuant to Form S-3, it incorporates by\nreference certain documents filed with the Commission that contain information as of various dates.\n\n\n\n<\/p>
In accordance with our understanding with you as to the scope of our services under the\ncircumstances applicable to the offering of the Shares, we reviewed the Registration Statement, the\nBase Prospectus and the Prospectus Supplement, as well as the documents listed in ScheduleA hereto\n(those listed documents, taken together with the Base Prospectus, the \u0093Pricing Disclosure\nPackage\u0094), participated in discussions with your representatives and those of the Company, its\ncounsel and its accountants and advised you as to the requirements of the Securities Act and the\napplicable rules and regulations\n\n\n<\/p>
A-I-4\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
thereunder. Between the date of the Prospectus Supplement and the\ntime of delivery of this letter, we participated in further discussions with your representatives and\nthose of the Company, its counsel and its accountants concerning certain matters relating to the\nCompany and reviewed certificates of certain officers of the Company, an opinion of a<\/b>n\n\n<\/b>Associate <\/b>General Counsel of the Company and a letter from the Company\u0092s independent accountants\ndelivered to you in connection with the offering of the Shares.\n\n\n<\/p>
On the basis of the information that we gained in the course of the performance of the\nservices referred to above, considered in the light of our understanding of the applicable law\n(including the requirements of Form S-3 and the character of the prospectus contemplated thereby)\nand the experience we have gained through our practice under the Securities Act, we advised you and\nnow confirm that, in our opinion, each part of the Registration Statement, when such part became\neffective, and the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of\nthe Prospectus Supplement, appeared on their face to be appropriately responsive, in all material\nrespects relevant to the offering of the Shares, to the requirements of the Securities Act and the\napplicable rules and regulations of the Commission thereunder. Further, nothing that came to our\nattention in the course of such review has caused us to believe that, insofar as relevant to the\noffering of the Shares,\n\n\n<\/p>
(a) any part of the Registration Statement, when such part became effective, contained any\nuntrue statement of a material fact or omitted to state any material fact required to be stated\ntherein or necessary to make the statements therein not misleading,\n\n\n<\/p>
(b) the Pricing Disclosure Package, as of <\/u>:<\/u> <\/b>A<\/b>P<\/b>.M. on <\/u> <\/u>, 20<\/u> (which you have\ninformed us is a time prior to the time of the first sale of the Shares by any Underwriter), when\nconsidered together with the statements made under the caption \u0093Description of <\/b>Title of Preferred\nShares<\/b>\u0094 and \u0093Description of the\nDepositary Shares\u0094 <\/b>in, and the information <\/b>in the table <\/b>on the\nfront cover of, the Prospectus Supplement, contained any untrue statement of a material fact or\nomitted to state any material fact necessary in order to make the statements therein, in the light\nof the circumstances under which they were made, not misleading or\n\n\n\n<\/p>
(c) the Base Prospectus, as supplemented by the Prospectus Supplement, as of the date of the\nProspectus Supplement, contained any untrue statement of a material fact or omitted to state any\nmaterial fact necessary in order to make the statements therein, in the light of the circumstances\nunder which they were made, not misleading.\n\n\n<\/p>
We also advise you that nothing that came to our attention in the course of the procedures\ndescribed in the second sentence of the prior paragraph has caused us to believe that, insofar as\nrelevant to the offering of the Shares, the Base\n\n\n<\/p>
A-I-5\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
Prospectus, as supplemented by the Prospectus Supplement, as of the time of\ndelivery of this letter, contained any untrue statement of a material fact or omitted to state any\nmaterial fact necessary in order to make the statements therein, in the light of the circumstances\nunder which they were made, not misleading.\n\n\n<\/p>
In addition, we do not know of any litigation or any governmental proceeding instituted or\nthreatened against the Company that would be required to be disclosed in the Base Prospectus, as\nsupplemented by the Prospectus Supplement, and is not so disclosed. We call to your attention,\nhowever, the fact that the Company has an internal legal department and that, while we represent\nthe Company on a regular basis, our engagement has been limited to specific matters as to which we\nwere consulted by the Company and, accordingly, our knowledge with respect to litigation and\ngovernmental proceedings instituted or threatened against the Company is similarly limited. Also,\ninsofar as the offering of the Shares is concerned, we do not know of any documents that, as of the\ndate and time of delivery of this letter, are required to be filed as exhibits to the Registration\nStatement and are not so filed.\n\n\n<\/p>
The limitations inherent in the independent verification of factual matters and the character\nof determinations involved in the registration process are such, however, that we do not assume any\nresponsibility for the accuracy, completeness or fairness of the statements contained in the\nRegistration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure\nPackage, except for those made under the captions \u0093Description of Preferred Stock We May Offer\u0094,\n\n<\/b>\u0093Description of Preferred Stock We May Offer \u0097 Fractional or Multiple Shares of Preferred Stock\nIssued as Depositary Shares\u0094, <\/b>\u0093Legal Ownership and Book-Entry Issuance\u0094 and \u0093Plan of Distribution\u0094\nin the Base Prospectus and \u0093Description of <\/b>Title of Preferred Shares<\/b>\u0094, <\/b>\u0093Description of the\nDepositary Shares\u0094 <\/b>and \u0093Underwriting\u0094 in the Prospectus Supplement, in each case insofar as they\nrelate to provisions, therein described, of the Shares<\/b>, the Deposit Agreement <\/b>and the\nUnderwriting Agreement relating to the Shares. Also, we do not express any opinion or belief as to\nthe financial statements or other financial data derived from accounting records contained in the\nRegistration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure\nPackage, or as to the report of management\u0092s assessment of the effectiveness of internal control\nover financial reporting or the auditor\u0092s attestation report thereon, each as included in the\nRegistration Statement, the Base Prospectus, the Prospectus Supplement or the Pricing Disclosure\nPackage.\n\n\n\n<\/p>
A-I-6\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
This letter is furnished by us, as counsel to the Underwriters, to you, as Representatives of\nthe Underwriters, solely for the benefit of the Underwriters in their capacity as such, and may not\nbe relied upon by any other person. This letter may not be quoted, referred to or furnished to any\npurchaser or prospective purchaser of the Shares and may not be used in furtherance of any offer or\nsale of the Shares.\n\n\n<\/p>\n\n    \n    \n    \n    \n    \n    
<\/td>\n    <\/td>\n    <\/td>\n\n    <\/td>\n    <\/td>\n<\/tr>\n
<\/td>\n    Very truly yours,
\n<\/td>\n    		<\/td>\n<\/tr>
<\/td>\n\n    <\/td>\n    <\/td>\n<\/tr>
<\/td>\n    <\/td>\n    <\/td>\n<\/tr>
<\/td>\n    <\/td>\n    <\/td>\n\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\n\n
A-I-7\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
ScheduleA<\/b>\n\n\n\n<\/p>
<\/i><\/b>List documents other than the Base Prospectus that are included in the Pricing\nDisclosure Package.<\/i><\/i><\/b>\n\n\n<\/p>
A-I-8\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
ANNEX II<\/b>\n\n\n<\/p>
Form of Opinion of General Counsel or Associate General Counsel<\/u><\/b>\n\n\n\n<\/p>
(1)The Company has been duly incorporated and is validly existing as a corporation under the\nlaws of the State of Delaware;\n\n\n<\/p>
(2)The Underwriting Agreement <\/b>and the Deposit Agreement <\/b>ha<\/b>s<\/b>ve <\/b>been duly authorized,\nexecuted and delivered by the Company; and\n\n\n\n\n<\/p>
(3) The <\/b>Preferred <\/b>Shares have been duly authorized.\n\n\n<\/p>
In rendering such opinion, such counsel may state that such counsel expresses no opinion as to\nthe laws of any jurisdiction other than the Federal laws of the United States, the laws of the\nState of New York and the General Corporation Law of the State of Delaware; that, insofar as such\nopinion involves factual matters, such counsel has relied upon certificates of officers of the\nCompany and its subsidiaries and certificates of public officials and other sources believed by\nsuch counsel to be responsible; and <\/b>that such counsel has assumed that the Deposit Agreement has\nbeen duly authorized, executed and delivered by the Depositary, <\/b>that the certificate evidencing\nthe <\/b>Preferred <\/b>Shares conforms to the form thereof examined by such counsel (or members of the\nCompany\u0092s legal department acting under such counsel\u0092s supervision) and has been duly countersigned\nby a transfer agent and duly registered by a registrar of the <\/b>Preferred <\/b>Shares and that the\nsignatures on all documents examined by such counsel (or members of the Company\u0092s legal department\nacting under such counsel\u0092s supervision) are genuine, assumptions that such counsel has not\nindependently verified. In addition, such counsel may state that such counsel has examined, or has\ncaused members of the Company\u0092s legal department to examine, such corporate and partnership\nrecords, certificates and other documents, and such questions of law, as such counsel has\nconsidered necessary or appropriate for the purposes of such opinion.\n\n\n\n<\/p>
A-II-1\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n
ANNEX III<\/b>\n\n\n<\/p>
Pursuant to Section 8(d) of the Underwriting Agreement, the accountants shall furnish letters\nto the Underwriters to the effect that:\n\n\n\n<\/p>
(i) They are an independent registered public accounting firm with respect to the\nCompany within the meaning of the Act and the applicable published rules and regulations\nthereunder adopted by the Securities and Exchange Commission (the \u0093SEC\u0094) and the Public\nCompany Accounting Oversight Board (United States) (the \u0093PCAOB\u0094);\n\n\n\n\n<\/p>
(ii) In their opinion, the financial statements and any supplementary financial\ninformation and schedules (and, if applicable, financial forecasts and\/or pro forma\nfinancial information) audited or examined by them and included or incorporated by\nreference in the Registration Statement or the Prospectus comply as to form in all material\nrespects with the applicable accounting requirements of the Act or the Exchange Act, as\napplicable, and the related published rules and regulations thereunder; and, if applicable,\nthey have made a review in accordance with standards established by the American Institute\nof Certified Public Accountants of the consolidated interim financial statements, selected\nfinancial data, pro forma financial information, financial forecasts and\/or condensed\nfinancial statements derived from audited financial statements of the Company for the\nperiods specified in such letter, as indicated in their reports thereon, copies of which\nhave been furnished to the Underwriters;\n\n\n\n<\/p>
(iii) They have made a review in accordance with standards established by the American\nInstitute of Certified Public Accountants of the unaudited condensed consolidated\nstatements of income, consolidated balance sheets and consolidated statements of cash flows\nincluded in the Prospectus and\/or included in the Company\u0092s Quarterly Report(s) on Form\n10-Q covering periods after the latest full fiscal year and incorporated by reference into\nthe Prospectus as indicated in their reports thereon copies of which have been furnished to\nthe Underwriters; and on the basis of specified procedures including inquiries of officials\nof the Company, who have responsibility for financial and accounting matters regarding\nwhether the unaudited condensed consolidated financial statements referred to in paragraph\n(vi)(A)(i) below comply as to form in all material respects with the applicable accounting\nrequirements of the Act and the Exchange Act and the related published rules and\nregulations, nothing came to their attention that caused them to believe that the unaudited\ncondensed consolidated financial statements do not comply as to form in all material\nrespects with the applicable\n\n\n<\/p>
A-III-1\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
accounting requirements of the Act and the Exchange Act and the related published\nrules and regulations;\n\n\n\n\n<\/p>
(iv) The unaudited selected financial information with respect to the consolidated\nresults of operations and financial position of the Company for the five most recent fiscal\nyears included in the Prospectus and\/or included or incorporated by reference in Item6 of\nthe Company\u0092s Annual Report on Form 10-K for the most recent fiscal year agrees with the\ncorresponding amounts (after restatement where applicable) in the audited consolidated\nfinancial statements for such five fiscal years which were included or incorporated by\nreference in the Company\u0092s Annual Reports on Form 10-K for such fiscal years;\n\n\n\n<\/p>
(v) They have compared the information in the Prospectus under selected captions with\nthe disclosure requirements of RegulationS-K and on the basis of limited procedures\nspecified in such letter nothing came to their attention as a result of the foregoing\nprocedures that caused them to believe that this information does not conform in all\nmaterial respects with the disclosure requirements of Items 301, 302 and 503(d),\nrespectively, of RegulationS-K;\n\n\n\n<\/p>
(vi) On the basis of limited procedures, not constituting an examination in accordance\nwith generally accepted auditing standards, consisting of a reading of the unaudited\nfinancial statements and other information referred to below, a reading of the latest\navailable interim financial statements of the Company and its subsidiaries, inspection of\nthe minute books of the Company and its subsidiaries since the date of the latest audited\nfinancial statements included or incorporated by reference in the Prospectus, inquiries of\nofficials of the Company and its subsidiaries responsible for financial and accounting\nmatters and such other inquiries and procedures as may be specified in such letter, nothing\ncame to their attention that caused them to believe that:\n\n\n\n<\/p>
(A) (i)the unaudited condensed consolidated statements of income,\nconsolidated balance sheets and consolidated statements of cash flows included in\nthe Prospectus and\/or included or incorporated by reference in the Company\u0092s\nQuarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not\ncomply as to form in all material respects with the applicable accounting\nrequirements of the Exchange Act and the related published rules and regulations,\nor (ii)any material modifications should be made to the unaudited condensed\nconsolidated statements of income, consolidated balance sheets and consolidated\nstatements of cash flows included in the Prospectus and\/or included or incorporated\nby reference in the Company\u0092s\n\n\n\n<\/p>
A-III-2\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
Quarterly Report(s) on Form 10-Q incorporated by reference in the Prospectus\nfor them to be in conformity with generally accepted accounting principles;\n\n\n\n<\/p>
(B) any other unaudited income statement data and balance sheet items included\nin the Prospectus do not agree with the corresponding items in the unaudited\nconsolidated financial statements from which such data and items were derived, and\nany such unaudited data and items were not determined on a basis substantially\nconsistent with the basis for the corresponding amounts in the audited consolidated\nfinancial statements included or incorporated by reference in the Company\u0092s Annual\nReport on Form 10-K for the most recent fiscal year;\n\n\n\n<\/p>
(C) the unaudited financial statements which were not included in the\nProspectus but from which were derived the unaudited condensed financial\nstatements referred to in clause (A)and any unaudited income statement data and\nbalance sheet items included in the Prospectus as most recently amended or\nsupplemented and referred to in clause (B)were not determined on a basis\nsubstantially consistent with the basis for the audited financial statements\n\nincluded or incorporated by reference in the Company\u0092s Annual Report on Form 10-K\nfor the most recent fiscal year;\n\n\n\n\n<\/p>
(D) any unaudited pro forma consolidated condensed financial statements\nincluded or incorporated by reference in the Prospectus do not comply as to form in\nall material respects with the applicable accounting requirements of the Act and\nthe published rules and regulations thereunder or the pro forma adjustments have\nnot been properly applied to the historical amounts in the compilation of those\nstatements;\n\n\n\n<\/p>
(E) as of a specified date not more than five days prior to the date of such\nletter, there have been any changes in the consolidated capital stock (other than\nissuances or forfeitures of restricted stock units issued under the Company\u0092s Stock\nIncentive Plan and repurchases of common stock in accordance with the Company\u0092s\ncommon stock repurchase program or issuances of stock associated with the Company\u0092s\nemployee stock option plans) or any increase in the consolidated long-term debt of\nthe Company and its subsidiaries, or any decreases in consolidated total current\nassets or stockholders\u0092 equity or other items specified by the Representatives, or\nany increases in any items specified by the Representatives, in each case as\ncompared with amounts shown in\n\n\n<\/p>
A-III-3\n<\/p><\/div>\n\n
<\/p>
\n<\/p>
<\/h5>
\n\n<\/p>
\n\n\n
the latest balance sheet included or incorporated by reference in the\nProspectus, except in each case for changes, increases or decreases which the\nProspectus discloses have occurred or may occur or which are described in such\nletter; and\n\n\n\n<\/p>
(F) for the period from the date of the latest financial statements included\nor incorporated by reference in the Prospectus to the specified date referred to in\nclause (E)there were any decreases in consolidated total revenues or consolidated\nrevenues, net of interest expense, pre-tax earnings or net earnings or other items\nspecified by the Representatives, or any increases in any items specified by the\nRepresentatives, in each case as compared with the comparable items in the\ncomparable period of the preceding year and with any other period of corresponding\nlength specified by the Representatives, except in each case for increases or\ndecreases which the Prospectus discloses have occurred or may occur or which are\ndescribed in such letter insert if applicable \u0097 <\/i><\/b>and except that, because no final\nconsolidated income statement information was available for that period, the\naccountants are unable to provide an opinion as to whether there have been any such\ndecreases or increases<\/i><\/b>; and\n\n\n\n<\/p>
(vii) In addition to the audit referred to in their report(s) included or incorporated\nby reference in the Prospectus and the limited procedures, inspection of minute books,\ninquiries and other procedures referred to in paragraphs (iii)and (vi)above, they have\ncarried out certain specified procedures, not constituting an audit in accordance with\ngenerally accepted auditing standards, with respect to certain amounts, percentages and\nfinancial information specified by the Representatives which are derived from the general\naccounting records of the Company and its subsidiaries which appear in the Prospectus\n(excluding documents incorporated by reference), or in PartII of, or in exhibits and\nschedules to, the Registration Statement specified by the Representatives or in documents\nincorporated by reference in the Prospectus specified by the Representatives, and have\ncompared certain of such amounts, percentages and financial information with the accounting\nrecords of the Company and its subsidiaries and have found them to be in agreement.\n\n\n\n\n<\/p>
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