The Goldman Sachs Group, Inc. (GS) 8-K Amended and Restated General Guarantee Agreement

EXHIBIT 4.1

AMENDED AND RESTATED GENERAL GUARANTEE AGREEMENT

This Amended and Restated General Guarantee Agreement, dated September 28, 2018 (this “Guarantee”), is made by The Goldman Sachs Group, Inc. (the “Guarantor”), a corporation duly organized under the laws of the State of Delaware, in favor of each person (each, a “Party”) to whom Goldman Sachs Bank USA, a New York state-chartered bank and a subsidiary of the Guarantor (the “Company”), may owe any Obligations (as defined below) from time to time. In this Guarantee, the “Company” shall also mean any banking subsidiary of the Guarantor, whether now existing or hereafter formed, that succeeds to the business of Goldman Sachs Bank USA. Effective as of October 5, 2018, this Guarantee amends and restates in its entirety the Amended and Restated General Guarantee Agreement dated November 21, 2011 of the Guarantor of the Obligations of the Company.

1.Guarantee. For value received, the Guarantor hereby unconditionally and, subject to the provisions of paragraphs number six and seven, irrevocably guarantees to each Party, the complete payment when due, whether by acceleration or otherwise, of all payment obligations, whether now in existence or hereafter arising (other thannon-recourse payment obligations) of the Company, including, without limitation, all payment obligations (other thannon-recourse payment obligations) in connection with any deposit, loan, letter of credit or similar borrowing or lending obligation or arising under any swap, futures, option, forward or other derivative instrument (the “Obligations”);provided,however, that, with respect to any Party, “Obligations” shall not include any payment obligations, whether now in existence or hereafter arising, of the Company arising under or in connection with any certificate of deposit of the Company unless the confirmation of sale of such certificate of deposit, the disclosure statement or any other offering document relating to such certificate of deposit, the instrument governing such certificate of deposit (including any master certificate of deposit), or the books and records of the Company or its affiliates expressly states that the obligations of the Company under such certificate of deposit will be entitled to the benefit of this Guarantee. This Guarantee is one of payment and not of collection.

2.Waiver of Notice, etc. Except as may be required by the contract, agreement or instrument creating the Obligations, the Guarantor hereby waives notice of acceptance of this Guarantee and notice of the Obligations, and waives proof of reliance, diligence, presentment, demand for payment, protest, notice of dishonor ornon-payment of the Obligations, suit, and the taking of any other action by any Party against, and any other notice to, the Company, the Guarantor or others.

3.Nature of Guarantee. This Guarantee shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity or enforceability of any Obligation or right of offset with respect thereto at any time and from time to time held by any Party or (b) any other circumstance whatsoever (with or without notice to or knowledge of the Company or the Guarantor) which might constitute an equitable or legal discharge of the Company for the Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any other instance;provided,however, that under no circumstances will the Guarantor be liable to any Party hereunder for any amount in excess of the amount which the Company actually owes to such Party and that the Guarantor may assert any defense to payment available to the Company, other than those arising in a bankruptcy or insolvency proceeding.

A Party may at any time and from time to time without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder: (1) agree with the Company to make any change in the terms of the Obligations; (2) take or fail to take any action of any kind in respect of any security for any obligation or liability of the Company to such Party, (3) exercise or refrain from exercising any rights against the Company or others in respect of the Obligations; or (4) compromise or subordinate the Obligations. Any other suretyship defenses are hereby waived by the Guarantor.

4.Reinstatement. The Guarantor further agrees that this Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations, or interest thereon is rescinded or must otherwise be restored or returned by such Party upon the bankruptcy, insolvency, dissolution or reorganization of the Company.

5.Subrogation. The Guarantor will not exercise any rights which it may acquire hereunder by way of subrogation, as a result of a payment hereunder, until all due and unpaid Obligations to such Party shall have been paid in full. Any amount paid to the Guarantor in violation of the preceding sentence shall be held by Guarantor for the benefit of such Party and shall forthwith be paid to such Party to be credited and applied to the due and unpaid Obligations. Subject to the foregoing, upon payment of all such due and unpaid Obligations, the Guarantor shall be subrogated to the rights of such Party against the Company with respect to such Obligations, and such Party agrees to take at the Guarantor’s expense such steps as the Guarantor may reasonably request to implement such subrogation.

6.Amendment and Termination. This Guarantee may be amended or terminated, as to one Party, all Parties or a group of specified Parties and as to one Obligation, all Obligations or specified Obligations, at any time by (i) issuance by the Guarantor of a press release reported by the Dow Jones News Service, the Associated Press or a comparable national news service, (ii) filing by the Guarantor of the amended Guarantee or notice of termination on a current or periodic report under the Securities Exchange Act of 1934, as amended, or (iii) written notice signed by the Guarantor, with such amendment or termination effective with respect to a Party on the opening of business on the fifth New York business day after the earliest of the issuance of such press release, the filing of such current or periodic report, or the receipt of such written notice, as applicable;provided,however, that no such amendment or termination may adversely affect the rights of any Party relating to any Obligations incurred prior to the effectiveness of such amendment or termination;provided further, that any such amendment or termination may become effective as to one Party whether or not it becomes effective with respect to another Party. For the avoidance of doubt, without prejudice to the rights of any Party with respect to Obligations incurred prior to the effectiveness of this Guarantee, to the extent there remain outstanding any Obligations guaranteed by the Guarantor under any and all prior General Guarantee Agreements of the Company’s obligations, this Guarantee amends, restates and supersedes such General Guarantee Agreements, and the guarantee of all Obligations guaranteed under any such prior General Guarantee Agreements shall hereafter be governed by this Guarantee, except that clause (ii) of paragraph number 7 and the last paragraph of this Guarantee shall not apply to Obligations guaranteed under any such prior Guarantee.

7.Assignment. The Guarantor may not assign its rights nor delegate its obligations under this Guarantee with respect to a Party, in whole or in part, without prior written consent of such Party, and any purported assignment or delegation absent such consent is void, except for (i) an assignment and delegation of all of the Guarantor’s rights and obligations hereunder in whatever form the Guarantor determines may be appropriate to a partnership, corporation, trust or other organization in whatever form that succeeds to all or substantially all of the Guarantor’s assets and business and that assumes such obligations by contract, operation of law or otherwise; or (ii) a transfer of this Guarantee or any interest or obligation of the Guarantor in or under this Guarantee, or any property securing this Guarantee, to another entity as transferee as part of the resolution, restructuring or reorganization of the Guarantor upon or following the Guarantor becoming subject to a receivership, insolvency, liquidation, resolution or similar proceeding. Upon any such delegation and assumption, or transfer, of obligations, the Guarantor shall be relieved of and fully discharged from all obligations hereunder, whether such obligations arose before or after such delegation and assumption or transfer.

8.Governing Law and Jurisdiction.THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. THE GUARANTOR AGREES TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF NEW YORK, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING UNDER OR RELATING TO THIS GUARANTEE.

In the event the Guarantor becomes subject to a proceeding under the Federal Deposit Insurance Act or Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together, the “U.S. Special Resolution Regimes”), the transfer of this Guarantee, and any interest and obligation in or under, and any property securing, this Guarantee, from the Guarantor will be effective to the same extent as the transfer would be effective under such U.S. Special Resolution Regime if this Guarantee, and any interest and obligation in or under this Guarantee, were governed by the laws of the United States or a state of the United States. In the event the

-2-

Company or the Guarantor, or any of their affiliates, becomes subject to a U.S. Special Resolution Regime, default rights against the Company or the Guarantor with respect to this Guarantee are permitted to be exercised to no greater extent than such default rights could be exercised under such U.S. Special Resolution Regime if this Guarantee was governed by the laws of the United States or a state of the United States.

IN WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of the day and year first above written.

THE GOLDMAN SACHS GROUP, INC.
By:	/s/ Elizabeth M. Hammack
Name:	Elizabeth M. Hammack
Title:	Authorized Officer

-3-