Exhibit 5.5
[Letterhead of Sullivan & Cromwell LLP]
January 30, 2004
The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV,
c/o The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
We are acting as counsel to The Goldman Sachs Group, Inc., a Delaware
corporation (the "Company"), and to Goldman Sachs Capital I, Goldman Sachs
Capital II, Goldman Sachs Capital III and Goldman Sachs Capital IV, each a
Delaware statutory business trust (the "Trusts"), in connection with their
filing of a registration statement on Form S-3 (the "Registration Statement")
under the Securities Act of 1933 (the "Act"). The Registration Statement
registers $23,000,000,000 aggregate amount of the following securities
(collectively, the "Securities"):
- senior and subordinated debt securities, warrants, purchase
contracts, units comprised of the foregoing (or of capital
securities described below), preferred stock of the Company
and depositary shares representing preferred stock;
- the shares of Common Stock, par value $0.01 per share, of the
Company (the "Shares") initially issuable upon conversion,
exercise or exchange of any Securities that are convertible
into or exercisable or exchangeable for Shares and the stock
purchase rights related to the Shares (the "Rights") to be
issued pursuant to the Stockholder Protection Rights
Agreement, dated as of April 5, 1999, between the Company and
Mellon Investor Services LLC (successor to ChaseMellon
Shareholder Services, L.L.C.), as Rights Agent (the "Rights
Agent");
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -2-
- capital securities of the Trusts (the "Capital Securities"),
each representing an undivided, preferred beneficial interest
in the assets of the issuing Trust;
- guarantees and related obligations of the Company, on a
subordinated basis and to the extent provided therein, with
respect to the payment of distributions on and the redemption
or liquidation price of the Capital Securities or of similar
securities of other issuers similar to the Trusts (the
"Guarantees"); and
- subordinated debt securities to be issued by the Company to
the Trusts (or other similar issuers) in connection with the
issuance by the Trusts (or other similar issuers) of Capital
Securities (or similar securities) having corresponding
payment terms (the "Debentures").
In connection with the filing of the Registration Statement, we, as
your counsel, have examined such corporate records, certificates and other
documents, including the resolutions of the Company's Board of Directors
authorizing the issuance of the Securities (the "Resolutions"), and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion:
(1) Indenture Securities. The indenture relating to the senior
debt securities, which is dated as of May 19, 1999, has been duly
authorized, executed and delivered by the Company, and the indenture
relating to the subordinated debt securities and the indenture relating
to certain of the warrants, in the forms filed as exhibits to the
Registration Statement, have been duly authorized by the Company. When
the Registration Statement has become effective under the Act, when the
indenture relating to the subordinated debt securities and the
indenture relating to certain of the warrants have been duly executed
and delivered substantially in the forms so filed, when the terms of
the debt securities and the warrants to be issued under the three
indentures described above (other than the Debentures, which we address
below) (the "Indenture Securities") and of their issuance and sale have
been duly established in conformity with the related indenture so as
not to violate any applicable law or result in a default under or
breach of any agreement or instrument binding upon the Company, and so
as to comply with any requirement or restriction imposed by any court
or governmental body having jurisdiction over the Company, and when the
Indenture Securities have been duly executed and authenticated in
accordance with the applicable indenture and issued and sold as
contemplated in the Registration Statement, and if all the foregoing
actions are taken
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -3-
pursuant to the authority granted in the Resolutions, the Indenture
Securities will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and the Shares, when duly issued upon conversion, exercise
or exchange of any Indenture Securities that are convertible into or
exercisable or exchangeable for Shares, will be validly issued, fully
paid and nonassessable. The debt securities covered by the opinion in
this paragraph include any debt securities that may be issued as part
of the units or upon exercise or otherwise pursuant to the terms of any
other Securities, as well as any purchase contracts or units that may
be issued under the indentures relating to the debt securities, but
they do not include any Capital Securities, Guarantees or Debentures.
The warrants covered by the opinion in this paragraph include any
warrants issued under an indenture that may be issued as part of the
units or upon exercise or otherwise pursuant to the terms of any other
Securities.
(2) Warrants Not Issued Under an Indenture. When the
Registration Statement has become effective under the Act, when the
terms of the warrant agreements under which certain of the warrants are
to be issued have been duly established and the warrant agreements have
been duly executed and delivered, when the terms of such warrants and
of their issuance and sale have been duly established in conformity
with the applicable warrant agreement and when such warrants have been
duly executed and authenticated in accordance with the applicable
warrant agreement and issued and sold as contemplated in the
Registration Statement, and if all the foregoing actions are taken
pursuant to the authority granted in the Resolutions and so as not to
violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, such warrants
will constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and the
Shares, when duly issued upon conversion, exercise or exchange of any
such warrants that are convertible into or exercisable or exchangeable
for Shares, will be validly issued, fully paid and nonassessable. The
warrants covered by the opinion in this paragraph include any warrants
that may be issued as part of the units or upon exercise or otherwise
pursuant to the terms of any other Securities, but they do not include
any Indenture Securities.
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -4-
(3) Purchase Contracts Not Issued Under an Indenture. When the
Registration Statement has become effective under the Act, when the
terms of the governing instruments or agreements under which certain of
the purchase contracts are to be issued have been duly established and
the governing documents have been duly executed and delivered, when the
terms of such purchase contracts and of their issuance and sale have
been duly established in conformity with the applicable governing
documents and when such purchase contracts have been duly executed and
authenticated in accordance with the applicable governing documents and
issued and sold as contemplated in the Registration Statement, and if
all the foregoing actions are taken pursuant to the authority granted
in the Resolutions and so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, such purchase contracts will constitute
valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and the Shares,
when duly issued upon conversion, exercise or exchange of any such
purchase contracts that are convertible into or exercisable or
exchangeable for Shares, will be validly issued, fully paid and
nonassessable. The purchase contracts covered by the opinion in this
paragraph include any purchase contracts that may be issued as part of
the units or upon exercise or otherwise pursuant to the terms of any
other Securities, but they do not include any Indenture Securities.
(4) Units Not Issued Under an Indenture. When the Registration
Statement has become effective under the Act, when the terms of the
unit agreements under which certain of the units are to be issued have
been duly established and the unit agreements have been duly executed
and delivered, when the terms of such units and of their issuance and
sale have been duly established in conformity with the applicable unit
agreements and when such units have been duly executed and
authenticated in accordance with the applicable unit agreements and
issued and sold as contemplated in the Registration Statement, and if
all the foregoing actions are taken pursuant to the authority granted
in the Resolutions and so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company, such units will constitute valid and
legally binding obligations of the Company, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -5-
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. The units covered
by the opinion in this paragraph include any units that may be issued
upon exercise or otherwise pursuant to the terms of any other
Securities, but they do not include any Indenture Securities.
(5) Preferred Stock. When the Registration Statement has
become effective under the Act, when the terms of the preferred stock
and of its issuance and sale have been duly established in conformity
with the Company's certificate of incorporation, when an appropriate
certificate of designations with respect to the preferred stock has
been duly filed with the Secretary of State of the State of Delaware
and when the preferred stock has been duly issued and sold as
contemplated by the Registration Statement, and if all the foregoing
actions are taken pursuant to the authority granted in the Resolutions
and so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, the
preferred stock will be validly issued, fully paid and non-assessable,
and the Shares, when duly issued upon conversion, exercise or exchange
of any preferred stock that is convertible into or exercisable or
exchangeable for Shares, will be validly issued, fully paid and
nonassessable. The preferred stock covered in the opinion in this
paragraph includes any preferred stock that may be represented by
depositary shares or may be issued upon exercise or otherwise pursuant
to the terms of any other Securities.
(6) Depositary Shares. When the Registration Statement has
become effective under the Act, when the terms of the deposit agreement
under which the depositary shares are to be issued have been duly
established and the deposit agreement has been duly executed and
delivered, when the terms of the depositary shares and of their
issuance and sale have been duly established in conformity with the
deposit agreement, when the preferred stock represented by the
depositary shares has been duly delivered to the depositary and when
the depositary receipts evidencing the depositary shares have been duly
issued against deposit of the preferred stock in accordance with the
deposit agreement and issued and sold as contemplated by the
Registration Statement, and if all the foregoing actions are taken
pursuant to the authority granted in the Resolutions and so as not to
violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Company and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, the depositary
receipts evidencing the depositary shares will be validly issued and
will entitle the holders thereof to the rights
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -6-
specified in the depositary shares and the deposit agreement, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles. The
depositary shares covered by the opinion in this paragraph include any
depositary shares that may be issued upon exercise or otherwise
pursuant to the terms of any other Securities.
(7) Rights. Assuming that the Rights Agreement has been duly
authorized, executed and delivered by the Rights Agent, then when the
Registration Statement has become effective under the Act and the
Shares have been validly issued upon conversion, exercise or exchange
of any Securities that are convertible into or exercisable or
exchangeable for Shares, the Rights attributable to the Shares will be
validly issued.
(8) Guarantee and Debentures. When the Registration Statement
has become effective under the Act, when the guarantee and related
agreements under which the Guarantees are to be issued, the trust
agreements under which the Capital Securities (and any other similar
securities referenced in the first paragraph of this letter) are to be
issued and the supplemental indentures under which (together with the
related indenture referenced in paragraph (1) above) the Debentures are
to be issued have been duly executed and delivered in substantially the
forms filed as exhibits to the Registration Statement, when the terms
of the Guarantees, the related Capital Securities (or any such other
securities) and the corresponding Debentures and of their issuance have
been duly established in conformity with the guarantee and related
agreements, the trust agreements and the related indenture and
supplemental indentures (and when the issuers of any such other
securities have been duly formed), as applicable, so as not to violate
any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company or the relevant Trust
(or any such other issuer) and so as to comply with any requirement or
restriction imposed by any court or governmental body having
jurisdiction over the Company or the relevant Trust (or any such other
issuer), and when the Guarantees, the related Capital Securities (or
any such other securities) and the corresponding Debentures have been
duly executed and (if required) authenticated in accordance with the
guarantee and related agreements, the trust agreements and the related
indenture and supplemental indentures, as applicable, and issued and
sold by the Company and the respective Trusts (or any such other
issuers), as applicable, as contemplated in the Registration Statement,
and if all the foregoing actions are taken pursuant to the authority
granted in the Resolutions, the Guarantees and the Debentures will
constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -7-
principles. The Guarantees and Debentures covered by the opinion in
this paragraph include any Guarantees and Debentures that, with the
corresponding Capital Securities (or any such other securities), may
be issued as part of the units or upon exercise or otherwise pursuant
to the terms of any other Securities.
In connection with our opinion set forth in paragraph (7) above, we
note that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts and
circumstances existing at that time and, accordingly, is beyond the scope of
such opinion.
We note that, as of the date of this opinion, a judgment for money in
an action based on a Security denominated in a foreign currency or currency unit
in a Federal or State court in the United States ordinarily would be enforced in
the United States only in United States dollars. The date used to determine the
rate of conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will depend upon
various factors, including which court renders the judgment. In the case of a
Security denominated in a foreign currency, a state court in the State of New
York rendering a judgment on such Security would be required under Section 27 of
the New York Judiciary Law to render such judgment in the foreign currency in
which the Security is denominated, and such judgment would be converted into
United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and (except as stated below) the
General Corporation Law of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction. Notwithstanding
the foregoing, for the purposes of our opinion set forth in paragraph (8) above,
we have assumed that, at all relevant times, the Capital Securities (or any
other similar securities referenced in the first paragraph of this letter) and
the related trust agreements will have been duly executed and delivered by the
respective Trusts (or the issuers of any such other securities) and, in the case
of the trust agreements, by the Company, the Capital Securities (or any such
other securities) will have been duly authenticated, if required under the trust
agreements, and the Capital Securities (or any such other securities) and the
trust agreements will constitute valid and legally binding obligations of the
respective Trusts (or any such other issuers) and, in the case of the trust
agreements, of the Company under the laws of the State of Delaware, and we are
expressing no opinion as to such matters.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible. We have assumed, without independent verification, that the
indenture relating to the senior debt securities has been duly authorized,
executed and delivered by the trustee thereunder, that all other governing
documents under which the Securities are to be issued, as well as the purchase
contracts, if applicable, will have been duly authorized,
The Goldman Sachs Group, Inc.
Goldman Sachs Capital I
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV -8-
executed and delivered by all parties thereto other than the Company and that
the signatures on documents examined by us are genuine. We have further assumed
that the issuance or delivery by the Company of any securities other than the
Securities, or of any other property, upon exercise or otherwise pursuant to the
terms of the Securities will be effected pursuant to the authority granted in
the Resolutions and so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding on the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company. Finally, we have assumed
that the authority granted in the Resolutions will remain in effect at all
relevant times.
We are expressing no opinion as to any obligations that parties other
than the Company may have under or in respect of the Securities, or as to the
effect that their performance of such obligations may have upon any of the
matters referred to above.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
the Securities" in the prospectus contained therein. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell LLP