Exhibit 5.6
[Letterhead of Sullivan & Cromwell LLP]
February 24, 2005
The Goldman Sachs Group, Inc.,
85 Broad Street,
New York, New York 10004.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI,
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 II, Goldman
Sachs Capital III, Goldman Sachs Capital IV, Goldman Sachs Capital V and Goldman
Sachs Capital VI, 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 $18,735,000,000 aggregate amount of the
following securities (collectively, the "Securities"):
o 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;
o 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
The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
LLC (successor to ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent (the "Rights Agent");
o capital securities of the Trusts (the "Capital Securities"),
each representing an undivided, preferred beneficial interest
in the assets of the issuing Trust;
o 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
o 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, which is
dated as of February 20, 2004, has been duly authorized, executed
and delivered by the Company. The indenture relating to certain of
the warrants, in the form filed as an exhibit to the Registration
Statement, has been duly authorized by the Company. When the
Registration Statement has become effective under the Act, when the
indenture relating to certain of the warrants has been duly
executed and delivered substantially in the form 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
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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 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
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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.
(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,
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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 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
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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
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) Guarantees 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
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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 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
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The Goldman Sachs Group, Inc.
Goldman Sachs Capital II
Goldman Sachs Capital III
Goldman Sachs Capital IV
Goldman Sachs Capital V
Goldman Sachs Capital VI
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 the indenture relating to
the subordinated 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, 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
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